BOATENG VRS ASANTEWAA (A4/37/22) [2023] GHADC 844 (22 December 2023)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON THE 22ND DECEMBER, 2023 SUIT NUMBER: A4/37/22 - PETITIONER BUCKMAN BOATENG H/NO 534/11 ACHIMOTA – ACCRA VS LUCY YAA ASANTEWAA H/NO 534/11 ACHIMOTA – ACCRA ……………………………………………………………………………………………………… TIME: 9:50 AM RESPONDENT - PARTIES PRESENT JUDGMENT Per a Petition for Divorce filed on 14/4/22 in this Honorable Court, the Petitioner prayed for the following reliefs; (a) Dissolution of the marriage. (b) Custody of the children with reasonable access to the Respondent. (c) Plot of land acquired should be shared equally. (d) Both parties should keep their respective cars. (e) Maintenance of the children should be shared equally. (f) Parties must bear their own legal fees. P a g e 1 | 10 The undisputed facts per the pleadings of the parties are that the parties married in the year 2016 at the Central Gospel Church, Ofankor Barrier and the marriage blessed with two children aged 4 and 2 respectively at the time of the issuance of this petition. Where the Petitioner is a tutor at Nursing and Midwifery Training at 37 Military Hospital, the Respondent is a mid-wife at Achimota Hospital. The parties have separated for some time now. According to the petitioner per his petition the marriage has broken down beyond reconciliation. Petitioner averred that he commenced divorce action at Circuit Court Accra, but same was discontinued for parties to resolve issues. Petitioner stated that the Respondent has been disrespectful and unforgiving and always take key decision without involving the Petitioner. The Petitioner further stated that the Respondent has been engaging in communication with her ex-boyfriend and on several occasions met or visited him with a claim of having solace in the boyfriend than the Petitioner. In her response and cross petition filed on 27/7/22, the Respondent denied all the paragraphs in the petition. In respect of the assertion of her visiting the ex-boyfriend, the Respondent denied and stated that it is the who rather is engaged in extra marital affairs. The Respondent cross petition for the dissolution of the marriage with the following relief. Custody of the children to Respondent reasonable access to petitioner, ordering the Petitioner to pay all educational and medical expenses of the children, share the land acquired equally, lump sum settlement of GHȻ 100,000.00 in favor of the Respondent Issues From the foregoing, it is evident that the main issue for consideration by this Court is whether or not the marriage between the petitioner and respondent has broken down beyond reconciliation. P a g e 2 | 10 The issue of custody and access, maintenance of the children and lump sum settlement would be ancillary issues to determine after the consideration of the main issue. Evaluation of Evidence and Legal Analysis It is trite in Civil Cases, the general rule is that the party who’s his/her pleadings or writ raises issues essential to the success of his/ her case assumes duty proofing his case. Per SC II (1) & (2), 12 (2) and 14 of The Evidence Act 1975 [NRCD 323] As Well as The Case of Takoradi Flour Mills v. Samir Faris [2005 – 2006] SCGLR 882 at 900. Gihoc Refegeration & Household v. Jean Hanna Assi [2005 – 2006] SCGLR 458, T. Chandriam v. Tetteh [2018] 120 GMJ 112 At 147 CA Per Agnes M. A Dordzie, JA and Air Namibia v. Micron Travel [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. In her evidence by way of witness statement filed on 27/7/22 which was adopted by the Court on 21/10/22, the Petitioner testified in support of his reason for seeking a dissolution of the marriage that the parties have been separated for some time now due to the Respondent disrespectful behavior, unforgiving, not willing to support financially to maintain home. He stated that Respondent has within the first three years of their marriage asked Petitioner to give her a divorce four times. In her evidence in chief by way witness statement filed on 7th September, 2022 and adopted by the Court on 23rd June, 2023, the Respondent, however testified that she has never been engaged in extra marital affairs but was faithful, loving and caring to the Petitioner. She added that the Petitioner does not keep home adequately as the money he gives is not able to take care of the home, and the Respondent has been proving clothes, school bags, lunch bag. According to her, the Petitioner is always unwilling to help her in the house chores, and anytime she asked help the Petitioner told her to do it alone as his mother took care of them alone. She indicated that the children are deprived of care and attention and prayed P a g e 3 | 10 for custody of the children. She concluded her evidence in chief by stating that it was the Petitioner’s psychological state that was weighing him down. The Petitioner denied the allegations of him to taking care of home and also filing for divorce at the Circuit Court but discontinued. The following questions under cross examination is worth to take note; Q: Your assertion that you commenced a divorce action in Circuit Court but stopped is not true. A: A petition was made, but don’t know whether or not it was served on you. It was discontinued because Respondent pleaded and advised through family members that she will not put up such unreasonable behavior. Q: You will agree with me that before I was engaged as a staff midwife at Achimota Hospital, I was receiving training school allowance and rotational is that not correct? A. It is not correct Q: I put it to you it was out of this accumulative allowance that I supported you with GH¢4,000.00 for the purchase of Honda Civic whenever you ask for assistance. A: It is totally untrue as I did not ask for any assistance to purchase any car. At that time, you were totally depending on me. Q: You also agree with me that I contributed GH¢400.00 every month whiles you contributed GH¢600.00 towards a piece of land we acquired at Amasaman yet you tell this Court that I have been reluctant in supporting you. A: I contributed 70% of the total cost toward the purchase together. Q: I put it to you that I have never asked for a divorce as you are alleging. A: Yes, you have requested for a divorce. P a g e 4 | 10 Q: I put it to you that it is not true. A: It is true that you requested for divorce 3 times, I had to talk to you to stop that behavior but fourth time you removed the ring and I informed your parents and counsellors to come in. Q: I put it to you that you made report to police station to cover your falsehood. A: That is totally untrue. I made the report on your abusive behavior on me. The Respondent also denied all the allegation leveled against her. The following questions and answers under cross examination are worthy to note; Q: How many years have you been married to Petitioner? A: 6 Years and some months. Q: Before you married the Petitioner were you gainfully employed? A: No. Q: In paragraph 9 of your witness statement you claimed you contributed an amount of GH¢12,000.00 towards the purchase of Honda Civic? A: Yes my Lord. When I use to be in a nursing training school, I had an allowance which was over GH¢12,000.00 and I gave it to the Petitioner. Q: I put it to you that you were not earning so much to be able to have contributed towards the purchase of the Honda Civic. A: It is false, because I had to save for some time. Q: During the same period, you claimed to have contributed GH¢12,000.00 towards the purchase of the car, you were planning for your wedding is that right? A: Yes my Lord. P a g e 5 | 10 Q: Did you contribute towards the wedding expenses? A: Yes my Lord, but an insignificant amount because at that time I was not ready to marry but he was insisting so he took greater part of the expenses. Q: So basically, want you want this Court to believe that you had money to contribute to the purchase of the Honda Civic but not having money to spend on your wedding celebration is that so? A: I had money at that time but not for marriage. Q: I put it to you that it was the Petitioner who paid for the total cost of the Honda Civic as well as the expenses of the wedding? A: It is not correct. Q. I suggest to you that the Petitioner supported your midwifery in 2013 & 2014 A. Yes My Lord but I had not started taking allowance. I did not force him to send me money, he gave it willingly. Q. Further suggest to you that the Petitioner has been a responsible young man to you even before marriage. A. Yes My Lord, every man who intends to marry any woman will go every length to do same. Q. In paragraph 11 of your witness statement you described an old friend which you met around 37, I put it to you that old friend was your ex-boyfriend which you even admitted before your Pastor in the presence of Petitioner during one of your counselling session. A. It is not true Q. I put it to you that the meeting with your ex-boyfriend is part of the reasons for this divorce before this Honorable Court. P a g e 6 | 10 A. It is not true because in the period of our marriage, that was not the first time he brought the issue of divorce. Q. In paragraph 13 of your witness statement you stated that the petitioner does not pay more in terms of expenses of the marriage, that is the housekeeping, is that so? A. It is true Q. Who pay, for the medical expenses of the children? A. The two of us with the greater part from me. Q. Which hospital do you take the children to? A. Achimota and 37 Military Hospital The Court is thus inclined to believe that the Petitioner has maintained home however, due to disrespecting and threatening behavior made the petitioner to leave home to save him from further abuses. The allegation of the Respondent having extra – marital affairs was not substantiated by the Petitioner as he failed to bring the Pastor who he claimed the Respondent confessed in his presence and this makes the allegation a mere fabrication. Unreasonable behavior is an objective test and this Court is minded to conclude that both parties have behaved unreasonably towards each other and have made it tolerable to live in each other’s company a fact this Court found throughout the trial. One party can’t be made to bear the brunt of the determination of the marriage when they have both exhibited behavior that should be absent from a loving congenial relationship. I find as a fact that both parties can’t be reasonably expected to live together as husband and wife. The Petitioner prayed for custody of the children of the marriage to be given to him. Section 22 of Act 367 states; P a g e 7 | 10 1) In a proceeding under this Act, it shall be the duty of the Court to inquire whether there are any children of the household. 2) The Court may, either on its own initiative or an application by a party to any proceedings under this account may make an order concerning any child of the household which it thinks reasonable and for the benefit of the child. 3) Without prejudice to the generality of subsection 2 order under this section may; (a) Award custody of the child to any person, Act (b) Regulate the right of access of any person to the child (c) Provide for the education and maintenance of the child or income of either or both of the parties to the marriage. Issues concerning the children it is the best interest of the child/children which is paramount consideration stipulated by Section 2 of the Children’s Act 1998 (Act 560). In making decisions concerning custody or access, the Court ought to avert its mind to matters such as the age the child, importance of a young child being with his mother, the preference for a child to be with his parents, among others. In the case of Kyei Baffour V Calis Anaman [2018] 124 GMJ 95 111 CA. It was held that in determining which parent is to take custody, it is trite law that the best interest or welfare of the child must be paramount and likewise in making of orders by the Court pertaining to custody of an infant. There are two (2) of marriage aged 5 and 3. No allegation of irresponsibility or moral inaptitude has been raised against the Respondent for which her prayer for custody must not be granted. Considering the tender ages and having stayed with Respondent, it will not be prudent to now take the children away from their mother. It will be in the best interest of the children to continue to live with their mother. The Respondent has also made a prayer for the award of lump sum financial settlement to her. Under Section 20 of the Matrimonial Causes Act, 1971, Act 367, the Court may P a g e 8 | 10 order either party to the marriage to pay the other party such sum of money as payment of financial provision as the Court think just and equitable. In coming to a decision on a lump sum payment to be awarded, due regard had been taken to cases such as Wachtel V Wachtel [1973] 1 ALL ER 829, Aikins V Aikins [1979] GLR 223 and Clark V Clark [1981] GLR 583. The award of lump sum or alimony is a discretionary function of the Court. A consideration of the award of lump sum payment should not be in isolation from the earning capacity of a party, it should not cripple the other party’s earning capacity. From the relevant forms filed by the Petitioner in initiating the action as well as the Respondent pleading, the Petitioner is a tutor at Nursing Training Collage. Taking into account of his job, I award a cost of GH¢20,000.00 to be paid to the Respondent as financial settlement. From the totality of evidence adduced in trial by the parties, it is the Court’s opinion that the marriage between the parties has broken down beyond reconciliation and it will be erroneous for the Court to rule the marriage to subsist. In the light of the foregoing, I hold that; 1. The marriage celebrated between the parties on 13th August, 2016 at Central Gospel Church Ofankor Barrier is hereby dissolved. 2. Custody of the two children of the marriage is granted to the Respondent with reasonable access every last weekend of every month to Petitioner. Custody during vacation should be shared equally between the parties when the children turn to the ages of 7. 3. The Petitioner is to maintain the children of the marriage the amount of GH¢1,500.00 every month. 4. The Petitioner is to be responsible for the educational and medical needs of the children. 5. The Respondent is to be responsible for the other needs of the children. P a g e 9 | 10 6. The Petitioner is to provide a single Self-contained around Achimota environs till they finished tertiary education. 7. Petitioner and Respondent are to take custody of their individual cars. 8. The land acquired during the subsistence of the marriage should be shared equally. 9. Petitioner is the pay the Respondent lump sum financial settlement of GH¢20,000.00. 10. There shall be order as to cost. HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P a g e 10 | 10