ANSAH VRS ACQUAH (A12/1/16) [2023] GHADC 713 (7 December 2023)

IN THE TDC DISTRICT COURT HELD AT TEMA ON THURSDAY THE 7TH DAY OF DECEMBER 2023 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A12/1/16 --------------- PETITIONER GIFTY ANSAH GLOBAL ESTATE NEW SITE DAWHENYA VRS EDWARD ACQUAH --------------- RESPONDENT COMMUNITY 4 TEMA PARTIES: PRESENT COUNSEL: RICHARD MENSAH ODUM, ESQ. FOR PETITIONER ABSENT RICHARD CLARKE HOLDING THE BRIEF OF RICHARD AKPOKAVIE, ESQ. FOR RESPONDENT PRESENT Page 1 of 27 JUDGMENT The Petitioner prays for dissolution of her marriage with the Respondent on the ground that their marriage has broken down beyond reconciliation. She prays for the following orders: a. b. c. d. e. That the customary marriage contracted between the parties be dissolved. That the Petitioner takes custody of the children of the marriage who are not the biological children of the Respondent. That the Petitioner be given the house since it was built on half of the one plot of land which she paid GH¢2,000.00 for. Or in the alternative the Petitioner be declared joint owner of the house, the remaining one and half plot of land and the quarter plot. Respondent be ordered to pay a lump sum of GH¢20,000.00 to the Petitioner as alimony. The Respondent in his amended answer to the petition denied the claims of the Petitioner; and stated that the marriage was dissolved customarily on 15th March 2015, that there is no marriage subsisting between the parties. That the Petitioner is not entitled to her claims except relief (b). The Respondent cross petitioned as follows: i. ii. Recovery of possession of Respondent’s House No. Plot 196, Dawhenya. An order ejecting Petitioner from Respondent’s House No. Plot 196, Dawhenya. THE CASE OF THE PETITIONER Page 2 of 27 The Petitioner’s case is that she was customarily married to the Respondent on 29th August 2009. That the parties cohabited at Sakumono, Tema and subsequently moved to Gulf City, Tema prior to the performance of the customary marriage. That there are two issues of the marriage who are not the biological children of the Respondent. The Petitioner continued that, the Respondent bought two plots of land in 2007 for GH¢4,000.00 during the period the parties were cohabiting of which she gave the Respondent GH¢2,000.00 as contribution for the purchase of the two plots. The Petitioner claims that one out of two plots belongs to her though the documents covering the two plots are in the name of the Respondent. That the Respondent advised her to build on the half plot of land leaving the one and half plot to be developed later. That she supervised the building till it was completed. The Petitioner further alleges that she contributed money to get the mason who put up the building, secured documents for the land and purchased building materials. According to the Petitioner, she made these contributions just before the customary marriage and during the pendency of the said marriage. That it is through her sole effort that the building became habitable during the marriage. The Petitioner further states that during the pendency of the marriage, the parties purchased a half plot of land at Dawhenya of which a quarter has been sold. According to the Petitioner, the marriage has broken down beyond reconciliation; that the Respondent’s behavior has made it unreasonable for her to stay married to him. That after the Respondent and his parents impressed on her to find ways to have children for the Respondent because he is infertile, he has deserted and neglected them. She continued that in her desperation to save the marriage and cover up for her husband’s infertility and to make him happy; she got pregnant but has been abandoned by the Respondent. That the Respondent has deserted the matrimonial home after she confronted him on the issue of helping maintain the family. She concluded that the parties have not had any sexual intimacy for two years. Page 3 of 27 In her evidence the Petitioner repeated the assertions in her petition and further testified that it is not true that the marriage between the parties was dissolved on 15th March 2015 because when the Respondent and his family came to her family’s house to dissolve the marriage her father said that the case was in Court so he cannot take the drink until the Court concludes the case so her father did not collect the drink and they also left. The Petitioner in her testimony gave a narration as to how she contributed to the construction of the subject matter property. She prayed for the reliefs endorsed on her petition. The Petitioner called one witness as PW1. PW1 in his testimony gave his name as Abusuapanyin Adu Kwaku Awukugua Boateng. That he lives at Awukugua but work in Kumasi and runs a store. According to PW1 he knows the Petitioner as her father is his tradition successor and also knows the Respondent as his son in law. That he has a photo documenting the wedding which he tendered as exhibit ‘1’. PW1 further testified that according to their custom the Respondent performed the rites he was supposed to do as custom demands. He continued that he does not know anything about the Respondent claim that on 15th March 2015 he came to dissolve the marriage. That it is the person who contracted the customary rites who is the same person before whom you dissolve the marriage. That if he goes to see someone and leaves a drink with him it does not mean that the marriage is dissolved. According to PW1 Opanyin Dzakye (deceased) is his son and before he died in 2015 October he said they came to him to dissolve the marriage but he directed them to him saying he is not the right person. That he only said they should go and see him (PW1) but nobody came to see him for the dissolution of the marriage. PW1 further testified that he is the one who would have presided if there was going to be a divorce. That they invite the two parties to try settlements and if it does not work before they dissolve it. That he was not a party to any settlement between the parties. In Page 4 of 27 his testimony PW1 told the Court the process of dissolving a marriage according to their custom and added that nothing like that took place. The Petitioner closed her case thereafter. THE CASE OF THE RESPONDENT The Respondent in his amended answer to the petition denied the claims of the Petitioner and further stated that there are two issues of the marriage. That he was deceived by the Petitioner that the children were his biological children until during a Court action. He continued that he solely acquired the two plots of land from his own resources in 2007. That he bought the land before he met the Petitioner and solely purchased a half plot of land at Dawhenya. The Respondent further stated that the marriage was dissolved customarily on 15th March 2015. That it is rather the Petitioner’s infidelity, aggressive, disrespectful, abusive and violent nature which compelled him to flee from his house to seek refuge in his parents’ house. That the Petitioner on several occasions tried to hit him with a pestle which resulted in the destruction of one of the doors in the house. That it is more than two years since the parties had conjugal relationship. According to the Respondent he is fertile and did not neglect nor desert Petitioner. That during the pendency of the marriage, he bought a car, two container shops at Ashiaman and Dawhenya in Petitioner’s name for her use. That a mother care and cosmetic shop was set up for the Petitioner in the shop at Ashiaman and a water depot as well in the shop at Dawhenya by him. That he further paid for the rent of the piece of land on which the container shop is at Ashiaman. The Respondent continued that he bought a land in Afienya bearing the Petitioner’s name and that the Petitioner has sold his one plot of land at Afienya without his consent. He concluded that there is no marriage subsisting Page 5 of 27 between the parties and that the Petitioner is not entitled to her claims except relief (b). He claimed per the reliefs under his cross petition as stated above. In his evidence the Respondent repeated his averments in his amended answer and testified further that, he has presented drinks to the Petitioner’s family that he cannot marry her again. That the marriage was dissolved customarily during that ceremony since it was a customary marriage and the ceremony was performed on 15th March 2015. The Respondent mentioned names of the people who were present from the Petitioner’s family including the Petitioner herself. He also mentioned the people who came from his family which includes himself. He tendered exhibit ‘1’ being a Court ruling. The Respondent further testified that he stayed with the Petitioner as his girlfriend before their marriage although they did not live together always. He further tendered a copy of receipt of part payment of the land he bought. In his testimony before the Court, the Respondent stated that he completed the building before marrying the Petitioner and that is where her family members came to lodge during their marriage. The Respondent also tendered exhibit ‘3’ being picture of a broken door to support his assertion that the Petitioner used pestle to destroy one of the doors in the house. He also tendered land title certificate, building permit and plan as exhibits ‘4’, ‘5’ and ‘6’. He again tendered exhibits ‘7’ and ‘8’ series being wedding programme and pictures as proof that the Petitioner got married during the pendency of the petition for divorce before the Court. The Respondent called one witness as RW1. RW1 gave his name as Gideon Percival Mensah. That he lives at Kyebi and manages a restaurant at Kyebi. He testified that he knows the Respondent when he worked with him at Intermodal Shipping Agency in 2006. That the Respondent was the accountant and he was the clerk. That he used to run errands for the Respondent and that anytime the Respondent sent him he will ask him to pick Maame Sika (Petitioner herein) and he will give him money in an envelope for them purchase items at sky view so they give the money to the cashier at sky view. That the Page 6 of 27 receipts for the building materials were issued in the name of the Petitioner and not in the Respondent’s name because the nature of the work, he cannot easily get time to come out during working hours. RW1 continued that the receipts were issued in the Petitioner’s name so that in case there is any future dispute she will quickly go to the site with the receipt. That the Petitioner was not working at that time. That the Respondent also gave him money to give to one mason by name Mr. Hanson and also to one Madam Mary who had been supplying him gravels. That through him the Respondent gave the contract of fixing burglar proof at the site to one Daniel Anane. According to RW1, he did a glass showcase for the Petitioner on the instruction of the Respondent and placed it in a container at the Zenu market. The Respondent thereafter closed his case. At the end of the hearing, a written address was filed for and on behalf of the Petitioner by her lawyer on 30th May 2023; and the Court has duly taken notice of the same. The lawyer for Respondent also filed a written address on behalf of Respondent much later on 4th December 2023 which was made available to me just yesterday on 6th December 2023. Same has been duly noted. Based on the pleadings and the evidence led, the Court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the customary marriage between the Petitioner and the Respondent is subsisting or has been dissolved customarily. 2. Whether or not the said marriage between the Petitioner and the Respondent has broken down beyond reconciliation. Page 7 of 27 3. Whether or not the house, the remaining one and half plot of land and the quarter plot are joint properties of the parties. 4. Whether or not the Petitioner is entitled to be declared joint owner of the house, the remaining one and half plot of land and the quarter plot. 5. Whether or not the Petitioner is entitled to an amount of GH¢20,000 as financial provision. 6. Whether or not the Respondent is entitled to an order of ejectment and recovery of possession of House No. Plot 196, Dawhenya. BURDEN AND STANDARD OF PROOF In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his case. Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “In other circumstances, 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 the fact was more probable than its non-existence”. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities. No exceptions were made.” Page 8 of 27 Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J. A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. The standard of proof as stated therefore applies to a petition for divorce. A cross-petition like a counterclaim, is an independent and separate action by the Respondent against the Petitioner. See Happee v. Happee [1971] 1 GLR 104. Thus, the burden is on the Petitioner to prove the facts alleged to establish the breakdown of the marriage. Where, as in the instant case, the Respondent has also cross-petitioned, he bears the burden to prove his cross-petition on a balance of probabilities. ANALYSIS I shall now analyse and evaluate the evidence adduced by the parties in support of their respective cases within the context of their corresponding burdens and the prescribed standard of proof as provided under the Evidence Act, 1975 (NRCD 323) to resolve the above issues. 1. Whether or not the customary marriage between the Petitioner and the Respondent is subsisting or has been dissolved customarily. A customary law marriage according to Justice Ollenu in Yoatey v Quaye (1961) 2 GLR 573 is a union of a man’s family and a woman’s family, whereas both families gain the right to perform rites in case of eventualities. Page 9 of 27 A customary law marriage validly contracted can either be dissolved under customary law or under the Matrimonial Causes Act 1971 (Act 367). It is not in dispute between the parties that the Petitioner was customarily married to the Respondent on 29th August 2009. What is in dispute is whether or not the said marriage still subsists or same has been dissolved. The Petitioner is in Court seeking to dissolve the said marriage among other ancillary reliefs. However the Respondent states in his amended answer that the marriage was dissolved customarily on 15th March 2015. He testified that family members of both parties met and dissolved the marriage customarily on 15th March 2015 since it was a customary marriage. The Petitioner vehemently denied the said assertion and maintained throughout the hearing that the customary marriage between her and the Respondent has not been dissolved. Gbadegbe JSC in the case of Sagoe v. SSNIT (2011) 30 GMJ 133; (2012) 52 GMJ 47 held that: “The party who asserts the affirmative of an issue has the incidence of the legal burden …” From the authority above, the Respondent had the legal burden to establish his assertion that the marriage was dissolved customarily on 15th March 2015 after same had been rebutted by the Petitioner. Parties who decide to dissolve their marriage under customary law dissolution must comply with certain steps before their marriage will be considered to be validly dissolved. The Petitioner having denied the Respondent’s assertion, the Respondent had a burden to prove that the marriage between the parties has been dissolved customarily. He who asserts in the affirmative bears the onus of proof. The burden of proof was on the Respondent to lead cogent evidence to support the assertion that the marriage was dissolved. However the Respondent did not adduce sufficient evidence to establish his Page 10 of 27 averment. The Respondent only repeated his assertion and mentioned some names without calling any of these people in Court to testify in support of his assertion. Rather it is the Petitioner who called a relative to testify as to the dissolution of the said marriage or otherwise. In Owusu v Tabiri [1987-88] 1 GLR 287, the Court held that since the onus of proof was on the Defendant who asserted that there was a valid arbitration, his failure to call the chief was fatal to his allegation that there was a valid arbitration. For the Respondent to have established the fact that there was a dissolution of the marriage customarily on 15th March 2015, he must have called at least one of the people he mentioned as a material witness to corroborate that assertion. The Respondent did not call any of them to testify in support of his averment. His failure to do so means he has failed to establish that as a fact. I am not oblivious of the law that corroboration is generally not a legal requirement to prove a fact and that the evidence of a single witness can be relied upon in proof of a case. Reference is made to the case of Ghana Ports and Harbours Authority & Anor.v. Nova Complex Ltd (2007-08) SCGLR 806. Nonetheless it must be noted that, where the evidence of a person would help resolve the matter one way or the other, it is important that he appears in Court to testify. Given that the Respondent failed to lead cogent evidence to prove his assertion that the marriage was dissolved customarily in the face of vehement denial by the Petitioner and considering that the Petitioner rather called a relative to testify that they have not dissolved the marriage between the parties, I do hereby dismiss the said assertion by the Respondent for lack of satisfactory evidence. Page 11 of 27 In the absence of sufficient evidence to establish that the marriage between the parties was dissolved customarily on 15th March 2015; I hereby find that the marriage between the parties has not been dissolved customarily. 2. Whether or not the said marriage between the Petitioner and the Respondent has broken down beyond reconciliation. With the above finding that the marriage between the parties has not been dissolved, I shall address the second issue which is whether or not the marriage between the parties is broken down beyond reconciliation. At this stage, it is essential to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(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 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; Page 12 of 27 (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 so 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; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. (3) notwithstanding that the Court finds the existence of one or more of the facts specified in subsection (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." Also, sections 41 (2) and (3) of Act 367 provide as follows: “(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 requirements of justice, equity and good conscience, the Court may (a) consider the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, in addition to or in substitution for the matrimonial reliefs afforded by this Act. (3) In the application of section 2 (1) to a marriage other than a monogamous marriage, the Court shall consider the facts recognised by the personal law of the parties as sufficient to Page 13 of 27 justify a divorce, including in the case of a customary law marriage, but without prejudice to the foregoing, the following: (a) wilful neglect to maintain a wife or child; (b) impotence; (c) barrenness or sterility; (d) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; and (e) persistent false allegations of infidelity by one spouse against another.” In the circumstances the burden is therefore on the Petitioner to prove that the marriage has broken down completely; proof of one or more of the facts under section 2(1) of Act 367 is/are necessary. In the case of Adjetey & Anor v. Adjetey [1973] 1 GLR 216, the Court held that: “On a proper construction of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367), the Court could still refuse to grant a decree even where one or more of the facts set out in section 2 (1) had been established. It was therefore incumbent upon a Court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage had broken down beyond reconciliation would not be enough.” In the instant case, the parties made mutual allegations of unreasonable behaviour against each other within the meaning and intendment of section 2(1)(b) of Act 367. From case law, conducts such as assault of a partner, threat of death, writing damaging letters to a spouse’s employers, causing the arrest of a spouse without just cause, denial of sex to a partner, failing to cooperate in finding solution to the couple’s inability to have children and verbal abuse have all been held to constitute behaviour which, coupled with the inability of the parties to reconcile can lead to a dissolution of the marriage. See the case of Happee v. Happee & Anor [1974] 2 GLR 186. Also, in the case of Mensah v. Mensah [1972] 2 GLR 198, the Court held that: Page 14 of 27 “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 ...” The Petitioner could not prove her allegations of unreasonable behavior on the part of the Respondent which were denied by the Respondent. The Petitioner did not adduce sufficient evidence to prove that the Respondent behaved unreasonably towards her. Nonetheless, it can be gleaned from the evidence on record that the Petitioner had two children during the subsistence of the marriage where the Respondent is not their biological father. Exhibit ‘1’ being a Ruling of this Court differently constituted establishes that the Petitioner had two children where the Respondent is not the father of the said children. There is also no evidence on record that the Petitioner underwent artificial insemination to conceive the said two children. Also from the evidence on record particularly exhibits ‘7’ and ‘8’, it is not in doubt that the Petitioner has gone ahead to marry another person even though her marriage to the Respondent has not been dissolved. Again from the entire evidence on record, the Petitioner and the Respondent have not lived together as husband and wife for over two years before the presentation of the instant petition. Moreover, the Respondent by his assertion that the marriage has already been dissolved consents to the grant of a decree of divorce. I also find from the entire evidence that the parties to the marriage have been unable to reconcile their differences. All these findings are clear indications that the marriage has broken down beyond reconciliation. Having regard to the evidence on record and the fact that the parties have irreconcilable differences and as a result have not lived as husband and wife for over two years now, I Page 15 of 27 find on the second issue that the marriage between the Petitioner and the Respondent has broken down beyond reconciliation. I shall next consider issues 3, 4 and 6 together. Issue 3 is ‘whether or not the house, the remaining one and half plot of land and the quarter plot are joint properties of the parties’; issue 4 is ‘whether or not the Petitioner is entitled to be declared joint owner of the house, the remaining one and half plot of land and the quarter plot’ and issue 6 is ‘whether or not the Respondent is entitled to an order of ejectment and recovery of possession of House No. Plot 196, Dawhenya’. Article 22 (3) (b) of the 1992 Constitution provides that: "Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of marriage". In the case of Quartson v. Quartson [2012] 2 SCGLR 1077 it was held that: “The Supreme Court’s previous decision in Mensah v. Mensah [2012] 1 SCGLR 391 is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. ” Also, in the case of Arthur (No 1) v. Arthur (No.1) [2013-2014] 1 SCGLR 543 it was held in as follows; Page 16 of 27 “…Property acquired by the spouses during the marriage was presumed to be marital property. Thus, marital property was to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse had made a contribution to its acquisition.” Additionally, the Supreme Court in the case of Peter Adjei v. Margaret Adjei (unreported) [Suit No. J4 06/ 2021] delivered on 21st day of April, 2021, the Court per Appau, JSC reiterated the position of the law on the presumption of joint ownership when His Lordship stated at page 10 as follows: “…any property that is acquired during the subsistence of the marriage, be it customary or under English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on equality is equity principle. This presumption of joint ownership is, however, rebuttable upon evidence to the contrary… What this means in effect is that, it is not every property acquired single- handedly by any of the spouses during the subsistence of a marriage that can be termed as a “jointly-acquired” property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired, irrespective of whether there was direct, pecuniary or substantial contribution from both spouses in the acquisition... so where a spouse is able to lead evidence in rebuttal or to the contrary ... the presumption theory of joint acquisition collapses.” Therefore, in a marital relationship, the parties reserve their constitutional right to acquire properties individually and marriage per se does not give spouses unwarranted access Page 17 of 27 and share in properties acquired by the other spouse through their individual sweat and efforts. The onus is thus on the Petitioner in this case who is claiming to be given the house in question or in the alternative be declared joint owner of the said house, the remaining one and half plot of land, and the quarter plot to first lead cogent and admissible evidence to establish that the properties in dispute were jointly acquired during the subsistence of the marriage particularly when the claim is denied as in the instant case. In the case of Tetteh v. T Chandiram & Co. Gh. Ltd & Others [2017-2020] 2 SCGLR 770, the Supreme Court affirmed the good old principle on what constitutes proof of an averment when it held that where a party alleged a claim but was denied, it was the duty of that party to adduce credible evidence to prove the claim and not merely mount the witness box and repeat her pleadings especially when the claim was capable of positive proof. In the instant case, the Petitioner in her petition for divorce claims the Respondent bought two plots of land in 2007 for GH¢4,000.00 during the period the parties were cohabiting of which she gave the Respondent GH¢2,000.00 as contribution for the purchase of the two plots. She further claims that one out of the two plots belongs to her though the documents covering the two plots are in the name of the Respondent. That the Respondent advised her to build on the half plot of land leaving the one and half plot to be developed later. That she supervised the building till it was completed and also contributed money to get the mason who put up the building, secured documents for the land and purchased building materials. According to the Petitioner, she made these contributions just before the customary marriage and during the pendency of the said marriage. That it is through her sole effort that the building became habitable during the Page 18 of 27 marriage. The Petitioner further states that during the pendency of the marriage, the parties purchased a half plot of land at Dawhenya of which a quarter has been sold. The Respondent in his amended answer to the petition states that he solely acquired the two plots of land from his own resources in 2007. That he bought the land before he met the Petitioner and solely purchased a half plot of land at Dawhenya. He also states that he bought a land in Afienya bearing the Petitioner’s name and that the Petitioner has sold his one plot of land at Afienya without his consent. The Petitioner in her evidence testified that she bought wood and got carpenters from Kumasi who did all the things including the door frames. That she went to the Raincoat Company to buy roofing sheets to roof the house. That she brought another person called Twabodom to do the ceiling noggins. She further testified that she bought some of the materials from Skyview. The Petitioner went on about how she bought the building materials and got different artisans to do different jobs including plastering, manhole, building of the fence wall, tiles for the floor, fixing of burglar proof among others including the purchase of paint and POP cement. She successfully tendered exhibits ‘A’, ‘A1’ – ‘A11’ and receipts of payments of building materials being exhibit ‘C’ series. In his evidence, the Respondent on his part testified that he stayed with the Petitioner as his girlfriend before their marriage although they did not live together always. He further tendered a copy of receipt of part payment of the land he bought. In his testimony before the Court, the Respondent stated that he completed the building before marrying the Petitioner and that is where her family members came to lodge during their marriage. Page 19 of 27 The Respondent testified that he gave money to one Gideon Mensah to go with the Petitioner to purchase the items since he did not get permission from work to go and buy them. He also tendered land title certificate, building permit and plan as exhibits ‘4’, ‘5’ and ‘6’. Under cross examination the Respondent admitted that it was the Petitioner who supervised the construction of the building at Dawhenya. That he gave her money and asked her to go to the timber market to buy woods for the roofing. He also admitted that the Petitioner connected electricity to the house but he did the wiring. From the evidence on record, the Petitioner through her exhibits proved she was the one contributing her time and efforts in the building of the said house. She tendered in exhibit ‘C’ which contained receipts of payments of various building materials which were all issued in her name. The Respondent also provided documents which showed the land was purchased by him, and that it was registered in his name as shown in exhibits ‘4’, ‘5’ and ‘6’. From the evidence before this Court, it can be observed that the land was registered in the Respondent’s name whiles the Petitioner also played a substantial role in making sure the house came into being. Furthermore, in Yeboa v Yeboa [1974] 2 GLR 114, it was held that the wife’s contribution went beyond mere assistance. She paid original deposit for the plot, spent monies in alterations and also contributed indirectly in time and efforts towards the building of the house. The building was held to be a joint property and the wife was entitled to a share. Page 20 of 27 The Petitioner was able to establish her assertion that she purchased building materials for the construction of the building in question as she tendered the receipts of payments of these materials. Assuming without admitting that it is the Respondent who always gave her money to purchase all these items with which the receipts are in the name of the Petitioner, then it can be safely concluded that the Petitioner substantially contributed in the construction of the building in kind by devoting her time and effort as she could not have been treated as an errand lady for the Respondent. The Petitioner being the spouse of the Respondent at the time of supervising the said construction is deemed to have contributed substantially in the construction of the said building because her contribution was beyond mere assistance therefore she is entitled to a share. Counsel for Respondent tendered exhibit ‘1’ through the Petitioner under cross examination. In the said exhibit, the Petitioner herein admitted in her sworn affidavit that the Respondent bought two plots of land for GH¢4,000.00 in 2007 during the period they were in a relationship and she subsequently advised him to start building on a portion of land. That she solely supervised till it was completed and contributed money as well for the construction of the said building. It can be gleaned from the evidence on record that, at the time the Respondent bought the said land in which he tendered his title certificate in evidence, the parties were not married but were in a relationship as the Respondent admitted under cross examination that the Petitioner was his girlfriend before they got married. Therefore the Petitioner as the Respondent’s girlfriend then, signed as a witness for the Respondent on the indenture executed in 2008 which is fixed in the land certificate. The mere fact that a girlfriend signs an indenture as a witness for her boyfriend does not automatically give her an interest in the said land which indenture she signed as a witness. There should be adequate evidence to establish that the said girlfriend substantially contributed to the acquisition of the said land. Page 21 of 27 The Petitioner also testified that in 2008 the parties bought a plot of land together from one Rasfond Parker, when they began building some people challenged them and destroyed it so the said Parker paid her back and the Respondent told her that he already had two plots at P. S. Global so they could take the project there. The Petitioner further testified to the effect that part of the said two plots is the land the house in dispute is located on. Indeed the Petitioner in her examination in chief testified that it is her money she used to build the house so the Court should give her the house and the land be given to the Respondent. From the Petitioner’s testimony on oath, it can be gathered and be further concluded that the Petitioner recognizes that the land belongs to the Respondent but it is the house on the land she made significant contribution to its construction. The onus was on the Petitioner to adduce sufficient evidence to establish her claim that she made part payment of the cost of the said two plots of land but she failed to discharge that burden of proof. In the absence of cogent evidence to substantiate the Petitioner’s assertion that she paid half of the price of the said two plots of land, I hereby dismiss the said claim as unsubstantiated. Likewise the Petitioner was not able to adduce satisfactory evidence to support her assertion that she jointly bought the other plot of land with the Respondent after the said averment was denied. Consequently the said assertion is also dismissed for want of evidence. I therefore find from the evidence on record that the Petitioner contributed substantially to the building of the house in dispute. I consequently find that the Petitioner is entitled to be declared joint owner of the said house. Page 22 of 27 However there is not sufficient evidence on record to warrant the declaration that the Petitioner is a joint owner of the remaining one and half plot of land and the quarter plot. Accordingly I find that the Petitioner is not entitled to such declaration by this Court. Flowing from the above findings, I hold that the Respondent is not entitled to an order of ejectment and recovery of possession of House No. Plot 196, Dawhenya as the evidence on record indicates that both parties are joint owners of the said house. I therefore declare the house in dispute situated at Dawhenya to have been jointly acquired by the parties which must be valued, sold and the proceeds shared between the parties. Considering the finding above that the Respondent solely acquired the land, the parties shall agree to appoint a valuer to value the said house excluding the land on which the house is located, 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. Given that the findings of the Court indicate that the Respondent is the sole owner of the land including the remaining land adjoined to the house in dispute, the Respondent shall have the right of first refusal to be exercised within twelve months from the date of the valuation. The cost of valuation shall be borne equally by the parties. In the event that the Respondent buys the Petitioner’s interest in the said house, the Petitioner shall vacate the said house within thirty days from the date of purchase of her interest by the Respondent. 5. Whether or not the Petitioner is entitled to an amount of GH¢20,000 as financial provision. Page 23 of 27 Section 20 (1) of Act 367 provides 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.” From the law, financial provision upon the dissolution of a marriage is not the exclusive preserve of women and that, the Court, may, if the justice of the case demands, award financial provision for either the man or the woman. In the case of Barake v. Barake [1993-1994] I G. L. R 635 at page 666, where Brobbey J (as he then was) stated: “On such an application, the Court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.” The award of lump sum financial provision under Act 367 is therefore need based and it is not intended to enrich one spouse at the expense of another or punish the one who is to be blamed for the breakdown of the marriage. In the case of Obeng v. Obeng [2013] 63 GMJ 158, the Court of Appeal held that what is “just and equitable” may be determined by considering the following factors: the income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties Page 24 of 27 before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage.” The Petitioner testified that she is a hairdresser and also an estate agent. The Respondent on his part testified that he works with Venicas Company Limited. The Respondent further testified that he gave the Petitioner GH¢50,000.00 to establish her as a trader. That he bought a market shade at the Ashaiman Zenu Market, two containers and also bought a car for the Petitioner. That he bought a land at Afienya and because he did not have time he gave the Petitioner the money to pay for the land and she did the papers in her name and later sold it. The Petitioner denied these assertions and told the Court that she did all these by herself. The Petitioner did not give a solid basis for the claim of financial provision. From the evidence on record the Petitioner has gone ahead to marry another man, therefore even though her marriage to the Respondent is yet to be dissolved, she has already found another love. She also has some working years ahead and has not afforded the Court the opportunity to peruse her earning capacities and her specific needs to assist the Court to arrive at a fair and just determination. For the reasons above, I dismiss the claim for a lump sum of GH¢20,000.00 to be paid to the Petitioner by the Respondent as alimony. CONCLUSION Page 25 of 27 From the foregoing, I conclude that the marriage between the parties has broken down beyond reconciliation and I hereby grant the Petitioner’s prayer for dissolution of the marriage with the following orders: 1. The customary marriage celebrated between the parties on 29th August 2009 is hereby dissolved. 2. Custody of the children of the marriage who are not the biological children of the Respondent, is hereby granted to the Petitioner. 3. The Petitioner’s relief for her to be given the house since it was built on half of the one plot of land which she paid GH¢2,000.00 for, is hereby dismissed. 4. I hereby declare the house in dispute situated at Dawhenya to have been jointly acquired by the parties. The parties shall have equal share and interest in the said property. The parties shall agree to appoint a valuer to value the said house excluding the land on which the house is located, 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 twelve months from the date of the valuation. The cost of valuation shall be borne equally by the parties. In the event that the Respondent buys the Petitioner’s interest in the said house, the Petitioner shall vacate the said house within thirty days from the date of purchase of her interest by the Respondent. 5. The Petitioner’s relief for her to be declared joint owner of the remaining one and half plot of land and the quarter plot is hereby dismissed. 6. The Respondent’s relief of recovery of possession of his House No. Plot 196, Dawhenya is hereby dismissed. 7. The Respondent’s relief of an order ejecting Petitioner from his House No. Plot 196, Dawhenya is hereby dismissed. Page 26 of 27 8. There will be no order as to financial provision to either party to the marriage considering the circumstances of the parties; thus the Petitioner’s relief of a lump sum of GH¢20,000.00 as alimony is hereby dismissed. 9. Considering the circumstances of the instant case, the parties shall bear their own cost of the suit. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Page 27 of 27