ESHUN VRS AMARTEY (C5/133/2023) [2023] GHACC 804 (29 December 2023)

IN THE CIRCUIT COURT “B”, TEMA, HELD ON FRIDAY THE 29TH DAY OF DECEMBER, 2023, BEFORE HER HONOUR KLORKOR OKAI-MILLS (MRS), CIRCUIT COURT JUDGE SUIT NO. C5/133/2023 BENJAMIN ADJEI ESHUN ----- PETITIONER VRS. FLORENCE ASI AMARTEY ----- RESPONDENT PETITIONER PRESENT RESPONDENT PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The petitioner, currently unemployed and the respondent, a trader got married under the Marriage Ordinance Cap 127 at the Tema Municipal Assembly, Tema on the 18th of December, 2016. After the marriage, the parties cohabited at Bediaku Saki-North in the Kpone Katamanso Municipality. There are no issues in the marriage, but respondent came to the marriage two children of her own. On 21st July, 2023, the petitioner filed the instant petition for divorce alleging that the marriage celebrated between the parties has broken down beyond reconciliation and prayed the court for the dissolution of the said marriage. The respondent upon service of the divorce petition entered appearance filed an answer and cross-petition on 2nd August, 2023 and also prayed the court for following reliefs: a. A dissolution of the marriage celebrated between the parties b. Financial settlement of GHC50,000.00. c. An order for the petitioner to rent an accommodation and a store for her business. PETITIONER’S CASE The petitioner’s case is that the respondent has behaved in a manner that he cannot be reasonably expected to live with her as husband and wife. He alleges that they are incompatible because for the number of years they lived as a couple, they have never agreed on any issue. Petitioner asserts that they do not communicate well. He further states that after they married, he allocated a store in his house and filled same with provisions for the respondent to trade in. The petitioner adds that the respondent has abandoned the matrimonial bedroom to join her children in another room and there has been no intimacy between them for the past three years. Petitioner avers that the parties encountered difficulty in conceiving children and therefore sought medical help but respondent refused to continue with the prescribed medication and asked petitioner to look for another woman to bare children for him. Petitioner particularized the following as unreasonable behavior by the respondent: i. ii. Respondent insults him openly that petitioner is impotent. Respondent, joined by her daughters to insult petitioner to wit “you can never have a child of your own” which insults attracts neighbors to their house which embarrasses the petitioner. iii. Respondent does not respect the petitioner as a husband. iv. Respondent for some time has neglected her wifely duties; consequently, petitioner does everything for himself as a bachelor would. v. Respondent is always invoking curses on the petitioner to wit: “you will die a foolish death.” He further alleges that respondent’s behavior has caused him so much anxiety, psychological trauma and distresses. Petitioner indicates that recently at a meeting with the respondent’s family, he was asked to compensate the respondent with an amount of GHC5000.00 for the customary dissolution of the marriage which he did but the family later asked him to come for the money because respondent is not interested in his money. He further testified that all attempts by friends and family to reconcile their differences has proved futile. RESPONDENT’S CASE The gravamen of the case of the respondent as contained in the cross-petition for divorce is that the petitioner has behaved in such a way that she cannot reasonably be expected to live with him as his wife. According to the respondent, they are both traders; petitioner trades in cement. Respondent states that petitioner previously filed a petition in this honorable court but did not pursue that petition. Respondent avers that petitioner had her stop her booming business of selling kenkey and fish at at Tema Secondary School and had her sell soaps instead because he was at the time working at Unilever. Respondent asserts that it was rather the petitioner who sacked her from the matrimonial bedroom and only calls on her when he needs sex. Respondent further asserts that it was rather the petitioner who told her family that respondent’s family cannot meet on the divorce matter between the parties when the matter is in court. Respondent adds she rather has pursed medical attention seeking a solution to their childlessness. The respondent alleges that the petitioner has always been abusive and aggressive towards her to the extent that the matter was reported at the police station. Again, the respondent states that it was at the police station that petitioner indicated that he was no longer interested in the marriage and the parties agreed that he would pay her GHC40,000.00 as compensation but later, an uncle of petitioner, on the blindside of the respondent, sought to take 5000.00GHC to respondent’s family but same was subsequently rejected. On the pleadings, the court set down the following issues for trial. LEGAL ISSUES 1. Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. 2. Whether or not the respondent is entitled to a financial settlement of GHC50,000.00. 3. Whether or not the petitioner should be ordered to rent accommodation and a store for respondent’s business. BURDEN OF PROOF Thus, the respondent who cross-petitioned for divorce and custody must lead sufficient evidence to prove the allegations contained in the petition on a balance of probabilities. ANALYSIS ISSUE 1: Whether or not the marriage celebrated between the Petitioner and the Respondent has broken down beyond reconciliation. Under the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to establish at least one of the facts set out in section 2(1) of Act 367, which are, adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years and irreconcilable differences. To encourage reconciliation as far as may be practicable, section 8 enjoins the cross-petitioner in the instant case to inform the court of all attempts made to effect reconciliation. A court shall refuse to grant a petition for divorce notwithstanding the fact that a petitioner has proved any of the facts in section 2(1), if there is reasonable possibility of reconciliation. In the case of Donkor v. Donkor [1982-1983] GLR 1158, the High Court, Accra, per Osei-Hwere J, held that: “…the petitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.” The petitioner in the instant petitioner set out to prove fact 2(1)(b), namely, “that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent”. To succeed under section 2(1) (b), the petitioner must prove the respondent’s conduct constituting unreasonable behaviour, and the fact that the petitioner cannot reasonably be expected to live with the respondent as a result of the bad behavior. In the case of Hughes v. Hughes [1973] 2 GLR 342 @ 345 Sarkodee J held that; “to succeed, the petitioner must show that the respondent’s conduct reached a certain degree of severity. Her conduct must be such that no reasonable person would tolerate or consider that the complainant should be called on to endure”. Also, in the case of Ansah v. Ansah [1982-83] GLR 1127, the court held in holding 1 “…The test under the section (section 2 (1) (b) of Act 367) was whether the petitioner could reasonably be expected to live with the respondent in spite of the latter’s behaviour. The test was therefore objective. But the answer obviously had to be related to the circumstances of the petition in question. That had to be a question of fact in each case. It followed that the conduct complained of must be sufficiently serious - since mere trivialities would not suffice.” To prove the allegation of unreasonable behaviour levelled against the respondent, the petitioner testified that after the celebration of their marriage, he suffered a stroke and was advised against use of fan, but the respondent well aware of this, would always turn on the fan in the bedroom. This action, petitioner asserts negatively affected petitioner’s health and after petitioner complained of same, respondent packed out of the matrimonial bedroom to her children’s room. The petitioner testified that while he has religiously taking his medication to help the parties conceive, the respondent abandoned the medical regimen they were put on to help them conceive. According to his testimony, there was a time when he gave respondent money to cook for him because he was unwell but respondent refused to cook for him; so he sent for his sister to come help him. Upon seeing his sister, believing that she was his girlfriend, respondent allegedly blocked the entrance refusing the sister entry. Petitioner testifies that he gently pushed respondent out of the way and respondent rushed to the police station to make complainant resulting in the petitioner being detained in the police station overnight. The respondent testified that when he was granted bail, the police tried unsuccessfully to resolve their differences. Additionally, the petitioner testified that the respondent is always invoking curses on him; threatening that he will die a foolish death. The respondent also recounted how the petitioner’s family returned the 5000.00ghc he paid to compensate respondent for the customary dissolution of the customary marriage. To prove her assertions of unreasonable behaviour on the part of the petitioner towards her, respondent testified that during the pendency of the marriage, the petitioner got a stroke and she nursed him back to health; and subsequent to the ailment, petitioner’s attitude towards her changed negatively. The respondent further states that the petitioner said he could no longer sleep under a fan, so irrespective of whether it was hot or cold, both parties had to sleep without the fan being turned on, though the heat on the room became unbearable. She testified that the petitioner repeatedly reported any misunderstandings between them to his mother and these reports would generate into little meetings to decide the issue. Respondent added that consequent to this happenings, petitioner’s mother became fed up and informed respondent’s family that her son, the petitioner was fed up with the marriage and that it should be dissolved. The respondent also stated that the matrimonial home became unbearable after constant emotional and physical abuse such that she reported the incidents at the police station. The respondent further testified that petitioner stopped providing for the upkeep of the home and stopped eating food she cooked for him, and on three consecutive occasions, informed her that she should not cook for him because he would eat at his mother’s or sister’s house. She adds that upon the death of petitioner’s father, he did not permit respondent to attend because he said there is a pending divorce and has packed all her belongings out of the matrimonial home to the extent that she has to sleep in her children’s room and bath outside. Respondent averred that when she confronted petitioner for bringing another woman, whom she asserts he is in an amorous relationship with into their matrimonial home, be beat her mercilessly and the matter ended up at the police station. Subsequently, he tried to compensate her with GHC5000.00 to dissolve the customary marriage but her family rejected same. Respondent further averred that petitioner stopped her from engaging in her fish and kenkey booming business to sell soap in a shop located infront of their matrimonial home. She states that she also bought other items into the shop and single-handedly fixed the shelves to display the goods. She again indicates that she and petitioner completed the 2-bedroom matrimonial, which he had already started and currently, petitioner has rented one room to a tenant; adding that the tiles used on same belong to her. Respondent avers that there is no sexual intimacy between the parties for a year now. During trial, the respondent cross-examined petitioner on his witness statement. The respondent did challenge petitioner on his assertions. The following ensued: Q: When you brought me to court, you then went to bring another woman to the house and removed my things outside, and I have been bathing outside and you have been in there with the woman, is that not so? A: I gave her money to cook for me and she said she would not take it. I was not well so I asked my sister to come and cook for me because the condition I was in at the time, was not good. Respondent started struggling with us and next morning, she went to report at the police station and they came to arrest me. That is when I decided that if this will land me at the police station, then I am not interested again. Q: I was selling fried fish before you married me. You asked me to stop selling the fish so you will set me up in a shop. You were working at Unilever so you were bringing soaps for me to sell in the shop. In your evidence in chief, you are saying I did not bring anything into the marriage. It was a provision store. A: When I marriage you, I had already built my store and I was already working at Unilever. We had issues with child birth. I brought a doctor who said if she kept frying the fish, it would affect the pregnancies if any came, so I decided she should use the shop instead of selling fish, BC: You said when you married her, you already had the shop. What was in the shop? A: Provisions were in the shop. She was the one selling in the shop. Q: I put it to you that you were selling cement in the store. The shop was not yet completed. You told me to come sell in the shop. A: Before marrying her, I was already selling cement in my shop. Before she came, I have completed the shop. Provision were then in the shop. The petitioner declined to cross-examine respondent on her witness statement after she had been sworn in. There are legion of authorities that state that where an averment in a pleading is not denied or the evidence of an opponent is not cross-examined upon, the evidence is deemed to have been admitted and no further proof of the averment is required. In the case of Fori v Ayirebi (1966) GLR 627 SC, the Supreme Court in its holding (6) held that: "When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact" The parties in their respective witness statements have made scathing and explosive allegations of unreasonable behavior against each other. Both parties confirm and do not contest the fact that they have not had sexual intimacy as a couple for at least a year prior to the filing of this petition. Once parties withhold sex from each other, the marriage is definitely on the rocks. The respondent’s assertion that she reported the petitioner to the police is confirmed by petitioner that indeed he was arrested by the police over domestic violence. It is undoubted that petitioner, forcing respondent out of the marital bedroom into the outhouse where she is forced to bath outside, is a clear indication of unreasonable behavior. The insistence of the respondent to use the fan in the bedroom, knowing very well that is has a negative effect on him as a stroke patient constitutes unreasonable behavior. The fact that the respondent also cross-petitioned for a divorce after petitioner filed his petition and served her same is a strong indication that the marriage has run its course. Both parties testify to the fact that efforts by both friends and family to reconcile them has proved unsuccessful. On the totality of the evidence led by the petitioner and respondent, I hold the Ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. ISSUE 2: Whether or not the respondent is entitled to a financial settlement of GHC50,000.00. Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) states 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.” In the case of Berchie-Badu v. Berchie-Badu [1987- 88] 2GLR 260, the court held in its holding 2 that: “However, when the High Court assumed its divorce jurisdiction, it was under the provisions of section 20 of the Matrimonial Causes Act, 1971 (Act 367) armed with sufficient powers to make provision for the wife on the breakdown of the marriage. In the exercise of the court’s discretion to award ancillary relief under 11 that section, the overriding consideration was that the order had to be “just and equitable.” The factors to consider in determining what is “just and equitable” are stated in the case of Kingsley Offei-Nkansah v. Marina Offei-Nkansah [21/10/2011] Suit No. BDMC 226/2010, the High Court presided over by Justice Patrick Baayeh are as follows: “In awarding a lump sum payment on the dissolution of a marriage the Court ought to take all the circumstances into consideration. The Court must look at the standard of living of the parties. Consideration must also be given to the welfare of any child (if any) who has not attained the age of 18 years. The Court should also takes into account the duration of the marriage, the income earning capacities of the parties, their property and financial resources for the future, their obligations, the standard of living of the parties before the breakdown of the marriage etc.” Here, the petitioner claims an amount of GHC50,000 as lump financial provision from the respondent. Here, the respondent and the petitioner both did not lead any evidence as to the source of their income. Petitioner only stated that respondent is a trader of provisions and he is currently unemployed. There are no issues between the parties, though the respondent does have her own two children, prior to marrying the petitioner. In the case of Aikins v. Aikins (1979) GLR 233, Sarkodee J (as he then was) held in holding 4 that: “In considering the amount payable as lump sum, the court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage…” The court further stated that the advantage of lump sum payment is to enable the payee to invest it and live on the income. It also has the purpose of enabling the wife to recoup expenses already incurred in maintaining herself or any child of the marriage and to remove bitterness associated with periodical payments. During the trial, the respondent testified that she reported the petitioner to the police station for the alleged assault and was given police medical form to attend the hospital. Though it would have been ideal for respondent to attach her statement and a copy of the medical report to substantiate her claim, she did not do so. Ideally, this claim would fail for lack of evidence. However, the petitioner himself, in his testimony also admitted that pursuant to the family meeting at which respondent’s family charged him some amount as compensation for the assault on respondent which led to his arrest, he offered respondent GHC5000.00, an amount which was subsequently rejected by respondent’s family. This admission by petitioner means that respondent does not need to adduce evidence to prove same given that petitioner has confirmed that indeed there was an altercation which ended up in his arrest and he himself offered financial compensation of GHC5000.00 to the respondent. It must be emphasized here that the alleged conduct of the of this incident. Respondent averred that prior to marrying the petitioner, she had a booming kenkey and fish business which petitioner had her stop to come and sell soap in his shop. The petitioner, under oath did confirm that indeed respondent was a kenkey and fish seller and he asked her to stop because of fear of it affecting any pregnancies and therefore had her sell in the shop instead. It is therefore uncontested that based on demands by petitioner, the respondent quit her booming business. There is no submission from both parties that the provisions shop was performing as well as a fast-moving business-like daily sale of foods. In the current circumstance that the parties are divorcing and petitioner is clearly demanding his shop back, the respondent is financially disadvantaged with nothing to fall back on, given that she closed up her business upon his request. Though the parties did not have any issue during the pendency of the marriage. In addition, respondent averred that when she took over the store offered to her by the petitioner, she installed the shelves at her own expense to display the goods in addition to purchasing more provisions from Ashiaman to sell in the store. Respondent did not challenge this assertion or raise issue with same in his testimony. The court therefore considers the averment by respondent to hold true. Further, the respondent, in her witness statement at paragraph 22 testified as follows: “That when petitioner met me, I was working and catering for myself and the children where we never lack and I told him the children lost their father and he accepted to marry me and take the children as his own, but now petitioner would insult me to outsiders and even stand outside of the house to insult the children to wit ‘they are ashawo children’ so I should send them to their father.” Given that the children are not the biological children of the petitioner, he is not legally responsible for their upkeep and respondent has not made such a demand. However, given the assertion made by respondent that she adequately catered for the children and indeed petitioner did not challenge same, and given that the respondent is no longer running her kenkey business, she is guaranteed to incur financial difficulty taking care of the children since she no longer sells the kenkey due to the petitioner asking her to stop that business. This is the same business she engaged in to take care of the children. It is logical that the respondent stopping her kenkey business was going to suffer financially in her inability to care for her biological children; and it is not because she unilaterally decided to stop the Kenkey business, but it is exactly because respondent made her stop. The petitioner from his pleading and in his witness statement has maintained that he is currently not working. However, he did not lead any evidence as to any impairment in his earning capacity for the court to conclude that he is not in a position to perform his legal obligation if the court finds that such obligation exists. Accordingly, the petitioner is ordered to pay respondent financial compensation of 40,000.00GHC within six months from the date of this judgment. ISSUE 3: Whether or not the petitioner should be ordered to rent accommodation and a store for respondent’s business Article 22 (2) & (3) (a) &(b) of the 1992 Constitution states that: 22(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article - (a) Spouses shall have equal access to property jointly acquired during the marriage; (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of marriage". In the case of Arthur (No 1) v. Arthur (No.1) [2013-2014] 1 SCGLR 543 held in holding 3 as follows; “…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.” In the Supreme Court’s decision in 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 when is 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.” Therefore, a person in a marital union has a constitutional right to acquire a separate property within the marital union and properties acquired by gift, through inheritance or through individual loan not fully liquidated are not regarded as marital property. Therefore, each case is determined on its particular facts and the evidence led to rebut the presumption of joint acquisition. Respondent prays here that the petitioner be ordered to rent a store for her and accommodation for her. From the evidence before the court, the store being alluded to was already in petitioner’s home before respondent moved in after she married petitioner. Respondent states in her witness statement at paragraph 23 as follows: “…petitioner asked me to stop frying of fish and asked me to occupy the store in front of our home where he gave me some soaps because at the time he was working with Unilever which I also went to Ashiaman to buy some provisions to open a convenient store.” Evidently, the petitioner’s store already existed before respondent came to occupy it at his request. Petitioner did not contest the averment by respondent that she input the shelves. Respondent also testified that she bought items into the shop. Though the respondent is not demanding an equal share of the store, she has demonstrated and petitioner has confirmed that she did make some investment in the shop. She also has her items in the shop. There is no evidence before this court that supports respondent’s claim that petitioner has to rent another shop for her. What is uncontested is that indeed she did occupy the shop and petitioner did not challenge the assertion that she input the shelves. The petitioner must compensate respondent for the shelves she input in the shop with an amount of GHC3000.00. Respondent is also entitled to empty the shop of all the provisions she has stocked in there if indeed, there are still provisions in the shop. Given that there is no evidence before the court that respondent contributed to the building of petitioner’s home, upon divorce and particularly since the parties do not have any issue between them, each party will leave the marriage with what they came with. Respondent’s prayer for petitioner to rent accommodation for her is hereby dismissed. CONCLUSION In conclusion, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I therefore grant the cross- petition for divorce and enter judgment for the respondent in the following terms; 1. I hereby grant a decree for the dissolution of the Ordinance Marriage celebrated between the petitioner and the respondent at the Tema Municipal Assembly on 18th December, 2016. 2. The party with the original marriage certificate shall present it for cancellation by the Registrar of the Court. 3. I hereby order petitioner to pay respondent financial compensation of GHC40,000.00 to paid within 6 months of this order. 4. The petitioner is to pay an amount of GHC3000.00 to respondent in settlement for the shelves she input into the shop. 5. Respondent is to empty out the current shop of all provisions she put in the shop. 6. Respondent’s prayer for petitioner to rent another store for her is hereby dismissed. 7. Respondent’s request for petitioner to rent accommodation for her is hereby dismissed. 8. There shall be no order as to costs. H/H KLORKOR OKAI-MILLS (CIRCUIT COURT JUDGE) (SGD) 16