ACHEAMPONG VRS AHAMAH (AR/KD/DC/A4/01/2023) [2023] GHADC 814 (4 December 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON MONDAY THE 4TH DAY OF DECEMBER, 2023 BEFORE HER WORSHIP CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (MRS), THE DISTRICT MAGISTRATE. WILLIAM ACHEAMPONG ]-PETITIONER SUIT NO. AR/KD/DC/A4/01/2023 Bangalow No. 2, Wesley Girl’s- SHS Kumasi VRS VIDA AHAMAH Kumasi TIME: 9:30AM JUDGMENT ]-RESPONDENT The parties to the marriage were joined in Holy Matrimony under the Marriages Act 1884, CAP 127 on 21st August, 2004 at the Christ Apostolic Church International, Kumasi (New Tafo). There are three issues of the marriage of which the eldest is 17yrs of age and the youngest is 12yrs. The Petitioner is a teacher whilst the Respondent is a caterer. 1 | P a g e CASE FOR THE PETITIONER On the 22nd of July, 2022, the Petitioner, the husband, filed a Petition at the registry of this court praying the court for a decree of divorce and custody of children of the marriage. The basis of his petition is that the marriage between himself and the Respondent has broken down beyond reconciliation due to the unreasonable behavior of the Respondent and the fact that they have been separated for over five years. Per the petition and witness statement, the Petitioner asserted that in October 2017 he took a loan of GH¢10,000.00 and gave the Respondent GH¢5,000.00 out of the loan to start a business. According to the Petitioner, a week after the Respondent took the money, she left the matrimonial home without telling him where she was going or when she will be back. The Petitioner averred that after sometime when the Respondent did not return he reported the matter to her family and they scheduled a meeting with him. It is the case of the Petitioner that at the meeting the Respondent stated at the presence of members of their families gathered that she was no longer interested in the marriage stating that the Petitioner refused to attend the funeral of some of her family members. He stated that she said he failed to fight on her behalf when the headmistress of the school he teaches stopped her from conducting her business in the school. The Petitioner further stated that her family members asked him to leave money for transportation for her with the assurance that she will return to him. According to the Petitioner two weeks later, one of his students brought him the Respondent’s copy of his bungalow’s key saying Respondent had asked her to deliver same to him. It is the case of the Petitioner that he rushed home and saw the wedding ring he gave to the Petitioner and a bottle of schnapps on his bed. He testified that knowing the 2 | P a g e implication of that gesture from the Respondent he informed the Respondent’s family about it. He stated that the Respondent’s family told him that it is the Respondent’s decision to marry and that if she was no longer interested in the marriage, then there is nothing that they can do about it. The Petitioner averred that three (3) days later the Respondent came back with a cargo car and took away all her possessions including the household chattels they acquired during the subsistence of their marriage. He added that from that time which is 2017 to date the Respondent has not returned to their matrimonial home. The Petitioner therefore prayed for the dissolution of the marriage. CASE FOR THE RESPONDENT In the respondent’s answer filed on the 6th of September, 2022 and witness statement filed on the 17th of September, 2022, she consented to the divorce. According to the Respondent after their marriage they cohabited at the premises of the Wesley Girls’ S. H. S. where the Petitioner stayed in a staff bungalow. She stated that she sold bread, cakes and grilled chicken to support the family. It is the case of the Respondent that some years later the headmistress asked her to stop selling the items on the school premises for no reason. According to the Respondent the Petitioner did not do anything about what the headmistress told her and so she resorted to the selling of second hand clothes but petitioner asked her to stop. The Respondent averred that thereafter, the Petitioner started exhibiting unreasonable behaviours towards her by picking quarrels with little or no provocation. Continuing with her assertion, the Respondent stated that forty days after the birth of their third child, she started seeing blood in her urine so she informed the Petitioner about 3 | P a g e it but he was unconcerned and said he is not a spiritualist to have known the cause of blood in her urine. The Respondent stated that she decided to see a specialist for medical treatment who requested to see the Petitioner but he failed to see the doctor. She added that she informed the Petitioner that the doctor said he should not force to have sex with her but he responded that the doctor is having a mental challenge for saying that. According to the Respondent after sometime her condition was deteriorating and so she asked the Petitioner to pay back a loan of GHs 5,000.00 he took from her so she can go for treatment. She stated that the Petitioner gave her the said money and she left the matrimonial home to her hometown to seek medical attention. The Respondent stated that after some number of years she came back to Kumasi but did not go to the matrimonial home. She stated she only visits and cooks for the Petitioner and the children until the Petitioner told her that his family members are not happy with her visits so she should stop visiting. The respondent stated that she advised herself and stopped visiting the matrimonial home. And she later went for her oven, bench and table from the matrimonial home. ISSUE At the end of the trial, the issue to be determined by the court was 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 4 | P a g e 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:— “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; 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; 5 | P a g e f. 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) and (e) 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 his 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. 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 first deal with the petitioner’s allegation of the respondent’s unreasonable behaviour which he asserts had contributed to the difficulties in their marriage. 6 | P a g e 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 a 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. 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. 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 7 | P a g e 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 subjected the Petitioner to and vice versa. The Petitioner’s pleadings and evidence before this court is that the he gave the Respondent the sum of GH¢5,000.00 to start a business but the Respondent took the money and left the matrimonial home without telling him where she was going or when she will be back. The Petitioner averred that after sometime when the Respondent did not return he met with her family at which the Respondent stated that she is not interested in the marriage Thus the question is what evidence was led by the Petitioner to support these allegations? 8 | P a g e The law is very clear on the kind of evidence required when a party makes an allegation of fact in his pleadings. The rule does not change when it comes to matrimonial matters. A party who alleges a fact must prove it either by direct evidence or evidence from which the court can rightly infer that the facts alleged exists. One cannot mount the witness box and repeat the same allegations of fact without calling evidence to support same. Thus it behooves on the Petitioner to lead evidence of the numerous incidents in the marriage which made him conclude that indeed the Respondent has been unreasonable more so when the Respondent denied the allegations. The Petitioner therefore did not sufficiently prove his allegation of unreasonable behavior on the part of the Respondent. The Petitioner in his pleadings also relied on Sec 2 (1) (e) of MCA 1971 to prove that the marriage has broken down beyond reconciliation. The Petitioner in his witness statement averred that parties have not lived together as husband and wife for over five years. It is worthy of note that the Respondent admitted to this piece of evidence that they have been separated for over five (5) years and consents to the dissolution of the marriage. Whether or not the marriage has broken down beyond reconciliation. From the evidence led before me, it is evident that the parties have not been living together as husband and wife for over five years. It is evident from the evidence of both parties that the marriage between the parties has been severely strained. Third parties have worsened the problem and the parties do not see eye to eye. All attempt to resolve their differences have proved futile not to mention the allegations and counter- allegations before this court. It is indeed apparent that the parties have not found common ground to reconcile not even the existence of three (3) children and the length of the marriage. In such a circumstance this court cannot exercise its powers under the law to assist the parties to 9 | P a g e 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 21st of August, 2004 has broken down beyond reconciliation and same is hereby decreed as dissolved under Section 2(1)(e) and (f) of Act 367. ANCILLARY RELIEFS 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 the children usually 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 who is the mother is not contesting custody of the children being given to the Petitioner. The children have live with the Petitioner for all these years that the parties have been separated. It is 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 mother must also have the benefit of developing a special relationship with them. 10 | P a g e Consequently, I hereby grant custody of the children of the marriage namely, Theodora Abena Agyeiwaa Acheampong, Nana Akua Serwaa Acheampong and Kelvin Owuoahene Acheampong 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). 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. SPOUSAL PROPERTY The Respondent prayed the Court to make a declaration that she is entitled to a share in House Number Unknown at Afrancho Krobo New Site acquired during the subsistence of the marriage. 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 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 11 | P a g e 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” Per the evidence before this case, the Petitioner admitted that during the subsistence of the marriage they acquired a property together. This is what he said under cross examination Q: Are the children of the marriage staying with you? A: Yes, they are with me Q: Did you acquire any property during the pendency of the marriage? A: Yes Q: What is it? A: A four-bedroom house at Afrancho Q: Is that where you are staying with the children of the marriage? 12 | P a g e A: No Q: Where are you staying with them A: In my school Q: In a school bungalow? A: Yes, in head teacher’s bungalow Q: Who is in the property at Afrancho? A: My younger brother lives there, it is not completed yet. From the foregoing the Petitioner admitted under cross examination that parties acquired a property during the marriage. Since the property was acquired during the subsistence of the marriage, this court 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, I hereby make an order for the four-bedroom house at Afrancho Krobo that 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. MAINTENANCE OF THE CHILDREN The Petitioner per his Petition before this court only prayed for the dissolution of the marriage and custody of the children. He did not pray the court for an order to compel the Respondent to pay half of the children’s school fees and medical bills. It is not in doubt that parental responsibility is a shared one, however the Petitioner has not asked for assistance from the Respondent. It is therefore apparent to the court that he has no difficulty in taking care of the children. Thus he is ordered to continue in the same fashion to pay the children’s school fees and their medical bills as they fall due. 13 | P a g e FINANCIAL PROVISION The Respondent herein also prayed for an alimony/financial provision from the Petitioner. 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” 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, the Petitioner is a government worker or public servant and the Respondent is a caterer. 14 | P a g e 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 :PRESENT 15 | P a g e