BOATENG VRS ZUANAH (C5/4/23) [2023] GHACC 901 (7 December 2023)

CORAM: HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE SITTIING AT THE CIRCUIT COURT MPRAESO, EASTERN REGION ON THE 7TH OF DECEMBER, 2023 __________________________________________________________________ C5/4/23 THERESA ESSEL BOATENG - PETITIONER V ERNEST ZUANAH - RESPONDENT ……………………………………………………………………………………………………… ………………………. TIME: 11:40 PETITIONER: ABSENT RESPONDENT: PRESENT MAHMOUD AHMED SAM ESQ H/B ALFRED AGYEMANG GYIMAH ESQ FOR THE PETITIONER PRESENT RESPONDENT SELF-REPRESENTED P a g e 1 | 20 JUDGMENT The facts of this case are that the parties herein got married under the Ordinance at the Saint Paul’s Anglican Church, North Suntreso. After the marriage the petitioner lived and worked in Accra whilst the Respondent lived and worked at Nkawkaw as an auditor at the Ghana Audit Service. The petitioner was working with Fidelity bank but resigned recently. There are three issues of the marriage aged five years, four years and one year. There have not been any previous proceedings with reference to the marriage or the issues of the marriage and the parties are all Ghanaians and domiciled in Ghana. It is the case of the petitioner that the marriage between her and the respondent has broken down beyond reconciliation on the basis that the respondent has committed adultery and she finds it intolerable to live with him. She gave the particulars of adultery as follows: 1. The Respondent is in a voluntary sexual relationship with one Gladys Ama Owusu 2. The Respondent has a child with the said Gladys Ama Owusu. According to the petitioner during the subsistence of the marriage they acquired; a. A plot of land at Pokuase in the Greater Accra Region b. A plot of land at Atwima Boaso around the Twedie Area ( In the Atwima Nwabiagya District) c. A plot of land at Nkawkaw d. A pontiac vibe saloon car with Registration number AS 4599- 15 The petitioner further says that all attempts at reconciling the differences between the parties have proved futile hence the instant petition. She thus brought the instant petition filed on the 24th of February, 2023 seeking the following reliefs: P a g e 2 | 20 a. That the marriage celebrated on the 7th of May, 2016 between the parties herein be dissolved b. That the petitioner be given custody of all the three issues of the marriage with right of reasonable access to the Respondent c. An order that the Respondent pays for the education and health needs of the three issues of the marriage as their monthly maintenance d. That the respondent be made to pay maintenance pending suit for the petitioner and the children of the household and thereafter such financial provision that this honourable court may deem just and equitable e. An order that the respondent pays an alimony of GH₵50,000.00 to the petitioner f. That half of the properties acquired during the subsistence of the marriage be settled in favour of the petitioner g. That the Pontiac vibe saloon car with registration number AS -4599 which she is currently using be settled in her favour On the 8th of March 2023, the respondent filed a response to the petition. The respondent made some admissions to the petitioner’s allegations and averred that the petitioner’s resignation from her work place was as a result of a meeting with her family due to problems she encountered mostly at her work place. The respondent averred that the properties acquired during the marriage are one plot of land situate, lying and being at Twedie and the pontiac vibe with registration number AS 4599 – 15. That the parties did not acquire any plot of land at Pokuase in the Greater Accra Region and Nkawkaw in the Eastern Region as claimed by the petitioner . The respondent further says that there has not been any attempt at reconciliation and thus prayed the court to order for reconciliation of the parties. The respondent agreed P a g e 3 | 20 that the custody of the children be granted the petitioner if the petitioner insists on the dissolution of the marriage. He further says that he has always been responsible and even when the petitioner left the matrimonial home in January 2023, he has remitted the petitioner to the tune of GH₵7,500.00. The respondent further prayed the court that if the petitioner insists on divorce then the plot of land at Twedie in the Ashanti Region and the Pontiac vibe which are properties acquired in the marriage be valued and half of the amount be paid to the petitioner as alimony in respect of property settlement and dismiss her claim for the pontiac vibe saloon car to be settled on her. ISSUES Based on the pleadings and the evidence led by the parties, the court set down the following issues for trial: 1. Whether or not the marriage between the parties has broken down beyond reconciliation 2. Whether or not the properties listed by the petitioner were jointly acquired by the parties during the subsistence of the marriage 3. Whether the petitioner is entitled to half share of the properties 4. Whether or not the petitioner is entitled to an alimony of GH₵50,000.00 As in all civil cases, the petitioner in a divorce petition has the burden to prove her assertions by a preponderance of probabilities as is required by law. See sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). Section 12(2) states that: “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” P a g e 4 | 20 In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that: 5. “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.” The court further stated: “ in assessing the balance of probabilities, all the evidence be it that of the Plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable than the rival version and is deserving of a favourable verdict”. In the instant case therefore the petitioner bears the burden to prove her assertions. Since the respondent herein did not cross petition, he has no burden of proof unless the burden shifts after the petitioner has led sufficient evidence on a particular issue. ISSUE 1 Whether or not the marriage between the parties has broken down beyond reconciliation The position of the law on the dissolution of marriages is that the sole grounds under which a marriage can be dissolved is when the party seeking its dissolution can establish that the marriage has broken down beyond reconciliation. Thus Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) provides as follows: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation” P a g e 5 | 20 Further to the above, the court dealing with such a petition, is required by law to determine as a fact that the marriage, in respect of which the petition has been presented, has indeed broken beyond reconciliation. Section 2(3) of Act 367 thus provides as follows: “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.” Consequently, under section 2(3), a court shall refuse to grant a petition for divorce if there is reasonable possibility of reconciliation although a petitioner has established one of the facts contained in section 2(1) of Act 367. This point was highlighted in the case of Adjetey & Anor v. Adjetey [1973] 1 GLR 216, where 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 petitioner alleges adultery which is one of the facts to be proved under section 2(1) of Act 367 to the satisfaction of the court that the marriage has broken down beyond reconciliation. Section 2 (1) (a) of Act 367 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:— P a g e 6 | 20 a. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent; William E. Offei in his book, Family Law in Ghana at page 221 quoted Family Law by Bromley (6th edition) where he defined adultery as: “…sexual intercourse between two persons of whom one or both are married but who are not married to each other.” In order to be guilty of adultery, a person must have had sexual intercourse voluntarily. In the case of Quartey v Quartey & Anor [1972] 1 GLR 6 Kingsley- Nyinah J. held inter alia on adultery that: “1. …the standard of proof required is proof beyond reasonable doubt, that is, it must be proved with the same degree of strictness as is required for the proof of a criminal offence. 2. A court may act upon an admission of adultery even though there be no confirmatory proof of it, if the court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to a clear, distinct and unequivocal admission of adultery...” The court presided over by Sarkodee J. in the case of Adjetey v Adjetey (1973) 1 GLR 216 also stated that: “adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of probability.” The evidence led by the petitioner in support of her allegation of adultery against the respondent is that their union was ok until she observed changes in the attitude of the P a g e 7 | 20 Respondent which gave her reason to suspect that the respondent was having extra marital affairs with other women. She also got to know from neighbours that the respondent had been bringing different ladies into the matrimonial home in Nkawkaw in her absence and so that confirmed her suspicion. When she moved to Nkawkaw with the kids, she confirmed that the respondent had been having extra marital affairs with other women like she suspected. The petitioner further testified that on one occasion when the respondent had gone for jogging and left his phone behind, she went through the respondent’s phone and saw that a lady by name Gladys Ama Owusu had texted the respondent and requested for money to go to the hospital. She was one of the ladies she had heard her husband was having an affair with. She called her number with the respondent’s phone and asked her to end whatever she has with the respondent and that she will not let the respondent send her the money. Right after she made that statement the said lady Ama Owusu boldly told her that she was pregnant for the respondent and that whether the petitioner liked it or not, the respondent has the responsibility of taking care of the baby she was carrying and that the petitioner could not stop the respondent from performing his responsibilities towards the unborn child. According to the petitioner, the said lady also told her that she had been in a sexual relationship with the respondent for four years and they have had sex several times in the room she lived in with the respondent in Nkawkaw. The petitioner further testified that on the 31st of December 2022, she went to church in the evening and left the respondent at home with the kids. On the 1st of January 2023 in the morning, she got hold of the respondent’s phone, went through it and found out that whilst she was in church praying for God to work a miracle in their marriage, the respondent was talking to Ama Owusu the whole night. She then realised the respondent P a g e 8 | 20 was not going to change She called the respondent’s parents and informed them about it and they came over to talk to them but the respondent did not show any remorse. All that the respondent said was that she should accept it and live with it because everyman does it. She told him she could not live with it. She gave herself time to see if the respondent will change but he did not. She called her parents and told them about it and considering all the risks attendant to the respondent’s conduct she packed her things and moved out with the children. The respondent tacitly admitted the claim of the petitioner. He told the court that on the 1st of January, 2023, there arose marital arguments of having extra affair outside the ordinance marriage of which he informed his parents to intervene. That his parents intervened and had a fruitful conference with the petitioner for the resolution of the issue of having an affair and a child outside the marriage and all attempts to persuade the petitioner to allow them live together proved futile as the petitioner remained adamant in her desire to live apart from the respondent. From the evidence on record therefore, therefore, I find that the respondent committed adultery and from the evidence led by the petitioner, she amply demonstrated that she finds the respondents conduct intolerable and thus packed out of the matrimonial home. Furthermore, even though the respondent stated in paragraph 9 of his response to the petition that there hasn’t been any attempt for the resolution of the matters ensued between the parties of which has failed, he testified per paragraph 12 and 15 of his witness statement that his parents intervened and they had a fruitful resolution of the matter but all attempts to persuade the petitioner for them to live together proved futile. That in spite of diligent efforts the parties have not been able to resolve their differences. P a g e 9 | 20 On the basis of the foregoing I am satisfied that the marriage between the parties herein has broken down beyond reconciliation on grounds of adultery and irreconcilable differences in terms of section 2(1) (a) and (f) of Act 367. ISSUE 2 Whether or not the properties listed by the petitioner were jointly acquired by the parties during the subsistence of the marriage The petitioner alleges that during the subsistence of the marriage, the parties acquired the following properties e. A plot of land at Pokuase in the Greater Accra Region f. A plot of land at Atwima Boaso around the Twedie Area ( In the Atwima Nwabiagya District) g. A plot of land at Nkawkaw h. A Pontiac vibe saloon Car with Registration number AS 4599- 15 The Supreme Court in a plethora of decisions on properties acquired during marriage has refined the position in many respects, the combined effect of which was stated by the Supreme Court in the case of Peter Adjei v. Margaret Adjei [2021] DLSC 10156 thus: “any property acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan Ordinance is presumed to have been jointly acquired by the couple and upon divorce should be shared between them on the equality is equity principle. This presumption is however rebuttable upon evidence to the contrary... What this means is that it is not every property acquired single handedly by any of the spouses during the subsistence of the marriage that can be termed as jointly acquired property to be distributed at all cost in this equality is equity principle. P a g e 10 | 20 Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired, irrespective of whether or not, there was direct pecuniary or substantial contribution from both parties in the acquisition... So whether a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v. Fynn, the presumption theory of join acquisition collapses” In the instant case even though the petitioner listed all the above items in her petition as having been jointly acquired by the parties during the subsistence of the marriage, in her evidence in chief she said that her lawyers wrongly carried out her instructions and that she solely acquired the plot of land at Atwima Boaso around Twedie Area hence it is not a jointly acquired property. The petitioner did not produce any evidence to support her claim. The position of the law is that a party who makes an assertion has the burden of leading cogent and sufficient evidence in proof of his assertion. He does not prove same by merely mounting the witness box and repeating her averments on oath. See; Majolagbe v. Larbi & Ors [1959] GLR 190 Klah v. Phoenix Insurance Co. Ltd [2012] 2SCGLR 1139 The petitioner therefore failed to prove that she solely acquired the plot of land at Twedie and therefore it is not a jointly acquired property. The burden thus never shifted to the respondent in terms of section 14 of the Evidence Act 1975 [NRCD 323] which provides that; “except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Notwithstanding that the respondent stated in his response to the petition that the only properties acquired by the parties during the marriage are the land at Twedie and the P a g e 11 | 20 Pontiac vibe saloon car and prayed the court for those properties to be sold and the petitioner given half share as alimony, in his evidence in chief, he stated that since the documents of the Twedie land are in the petitioner’s possession, same should be settled on the petitioner. In respect of the other two plots of land situate at Pokuase and Nkawkaw, which the petitioner alleges are jointly acquired properties, the petitioner who made the assertion did not produce any documents or evidence in support of the claim. The respondent denied that the parties jointly acquired any such properties during the subsistence of the marriage. The respondent emphatically stated that the only properties that were acquired in the course of the marriage were the plot of land at Twedie and the Pontiac vibe saloon car. During cross examination of the petitioner by the respondent on the said assertion, the following ensued: Q: You did not provide any evidence of the property in Pokuase and Nkawkaw. Can you tell the court why? A: It is because all the documents of the land in Nkawkaw and Accra are with you Q: Do you know where the Pokuase land is located specifically A: I don’t know where specifically the land is located in Pokuase but with Nkawkaw I know Q: So why do you make such a claim when you don’t know of any land situated in Pokuase A: It is not a claim. I know there is a land at Pokuase because you have spent our money on it. Q: How? A: It is a land you acquired with your uncle at a cost of GH₵20,000.00. You brought GH₵10,000.00 which the initial plan was to build a semi-detached storey building so half goes to your uncle on the same land. You started with the foundation and you went to the site and said P a g e 12 | 20 they didn’t do it well so you had to redo it. Any time I asked you of the progress of the project you told me you were waiting for your uncle’s share Q: I put it to you that all that you are saying there is nothing of that sort going on A: It is not true Q: Do you recall that when I told you about this you told me you were not comfortable about it and that we should acquire our own plot? A: At the point when I said I was not comfortable, you still went ahead and sent the plan so I had no option than just agree Q: I put it to you that at the time you said you were not comfortable I bowed out A: At the point that I said Q: I put it to you that I have no such property or in partnership with anyone to put up the foundation you are talking about A: I don’t accept that. From the above there is a complete denial by the Respondent of the existence of any such property acquired by the parties in the marriage. The petitioner who made the assertion did not introduce sufficient evidence to prove her claim and so the burden did not shift unto the respondent. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of the burden on a party required to prove an issue asserted in his pleadings as follows: The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to P a g e 13 | 20 lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; If not he loses on that particular issue. From the evidence therefore, it is my respectful view that the petitioner failed to prove her assertion that the parties jointly acquired a plot of land in Pokuase in the Greater Accra Region of the Republic of Ghana. I therefore hold that the parties do not have a jointly acquired property in Pokuase. In respect of the property in Nkawkaw, the petitioner testified during cross examination that the land was acquired last year that is 2022 and it is behind the respondent’s parents’ house. That the initial amount was GH₵30,000.00 but the man refused and said it was GH₵35,000.00. The following further ensued during cross examination of the petitioner; Q: Are you saying we paid GH₵35,000.00 for that piece of land A: Yes Q: How did we pay that money A: You said you did transfers to the man which I don’t have any documents because you did not show them to me Q: Do you recall telling me to abandon that cause we didn’t have money and had a lot of things to do A: There was no such communication between the two of us Q: Do you also recall that you said if my parents were going to support us then that was ok to acquire it P a g e 14 | 20 A: You told your Dad that you did not have money so you father gave you 10,000.00 through your little sister which you transferred to the man so you never abandoned it Q: Yes you are right, my father brought GH₵10,000.00, my brother gave me GH₵10,000.00 and I added GH₵10,000.00 and there is still a balance of GH₵5,000.00 of which my father is still in talks with the man to accept GH₵30,000.00 but the man says the land now costs more than GH₵35,000.00 so clearly the land has not been bought. A: You acquired the land last year and at the time you paid the GH₵10,000.00 I was supporting at home and that is why I gave you the go ahead From the foregoing, there is no dispute about the fact that the respondent’s father gave the respondent GH₵10,000.00 towards the purchase of the land at Nkawkaw and the respondent’s brother also gave the respondent GH₵10,000.00 for the same purpose. The court is not told whether those monies were gifts or loans to be repaid by the respondent. If those monies were given to the respondent as gifts, it stands to reason that any property purchased by the respondent with those gifts is his sole property because the money used to purchase the property does not include any effort of the petitioner. (See: Arthur v Arthur [2013-2014] SCGLR) On the other hand, if the said monies were given to the respondent as loans, then any property acquired by the respondent with the loan does not become a jointly acquired property until the loan is fully liquidated. This position was stated in the Adjei v. Adjei case (supra) thus: “Property single handedly acquired by a spouse under a loan, can only qualify as jointly acquired property after such a loan has been fully liquidated during the course of the marriage” P a g e 15 | 20 In the instant case there is no evidence that the respondent has paid for those monies assuming they were given to him as a loans. Furthermore, assuming even that the monies given to the respondent were loans and he has liquidated same, the unchallenged evidence is that there is still a balance of GH₵5,000.00 to be paid by the respondent. This means that the said property has not been fully paid for and so no interest has been acquired. The seller could easily change his mind and decide not to sell it again. Under these circumstances, the said property cannot be said to be a jointly acquired marital property. On the basis of the foregoing, I hold that no interest has accrued in the Nkawkaw land and can thus not be considered as a jointly acquired property. ISSUE 3 Whether the petitioner is entitled to half share of the properties acquired during the subsistence of the marriage The petitioner alleged that the parties jointly acquired a plot of land in Pokuase and Nkawkaw. The petitioner failed to prove that the parties acquired any such property in Pokuase. The evidence also established that the plot at Nkawkaw has not been fully paid for and as such same cannot be classified as a jointly acquired property. Even if same has been fully paid for, considering the circumstance of how the respondent mobilized funds for the payment of the land, it will be unjust to declare the property as a jointly acquired property. In respect of the property at Twedie as has already been discussed, the respondent has agreed for same to be settled on the petitioner and by the terms of settlement filed by the parties on the on the 14th of November 2023, the Pontiac vibe car is to be settled on the P a g e 16 | 20 petitioner. This leaves no other jointly acquired property to be distributed to the parties let alone determine whether or not the petitioner is entitled to a half share. ISSUE 4 Whether or not the petitioner is entitled to an alimony of GH₵50,000.00 From the evidence, the marriage has gotten to this point because of the conduct of the respondent and through no fault of the Petitioner’s. At least the respondent did not show any untoward conduct of the petitioner that led him to commit adultery. But for the said adultery which the petitioner finds intolerable from all indications, the petitioner would not have taken this step that will lead to loss of consortium. While it is quite easy for the respondent to move on and take on a wife immediately after the divorce is granted same cannot be said of the petitioner. The petitioner appears quite young and pretty and should ordinarily be expected to remarry after the grant of divorce however, the petitioner will be leaving the marriage with three young children aged 5, 4 and 1 making her prospects of remarrying uncertain as most men will be unwilling to take on as a wife, a woman who already has three children. In consideration of all the above coupled with the fact that the respondent did not maintain the petitioner during the pendency of the suit and the fact that the petitioner is currently unemployed and has a role to play in taking care of the children, I award alimony of GH₵50,000.00 in favour of the petitioner. CONCLUSION In conclusion, I hold that the petitioner proved on the balance of probabilities that the marriage between her and the respondent has broken down beyond reconciliation. I P a g e 17 | 20 accordingly grant the petition. Before I make any further orders, the parties filed terms of settlement on the 14th of November 2023 and agreed on the following terms: a. That the marriage celebrated on the 7th of May, 2016 between the parties herein be dissolved b. That the petitioner be given custody of all the issues of the marriage with right of reasonable access to the respondent c. An order that the respondent pays for the education and health needs of the three issues of the marriage d. That the amount to be paid as monthly maintenance be determined by the court based on the evidence presented e. That the Pontiac vibe saloon car with registration number AS 4599-15 which she is currently using be settled in her favour f. That the claims in reliefs (d) maintenance pending suit (e) Alimony and (f) property settlement be determined by the honourable court based on the evidence presented g. That the terms of settlement hereby agreed on be adopted and entered as consent judgment Having found that the marriage between the parties has broken down beyond reconciliation, the terms of settlement agreed on by the parties are hereby adopted as consent judgment consequent upon which the following orders are made: P a g e 18 | 20 1. It is hereby decreed that the marriage celebrated between the parties on the 7th of May 2016 under the Marriages Act (Cap 127) at the Saint Paul’s Anglican Church North Suntreso be and same is hereby dissolved and cancelled accordingly. 2. Custody of the three children is granted the petitioner with reasonable access to the Respondent 3. The Respondent shall maintain the three children with an amount of three thousand (3,000.00) Ghana Cedis a month subject to an upward review periodically at a rate to be agreed on by the parties or upon an application to the court. 4. The respondent shall be responsible for the payment of school fees and medical bills of the three children as and when they fall due 5. The claim for an order for maintenance pending suit is dismissed 6. The court awards Alimony of GH₵50,000 in favour of the petitioner 7. The claim for half share of the property acquired in the marriage is dismissed save that the Pontiac vibe saloon car is settled on the petitioner 8. Parties to bear their respective costs H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 19 | 20 P a g e 20 | 20