KUMADOR VRS OPPONG (C5/118/23) [2023] GHACC 818 (29 December 2023)

IN THE CIRCUIT COURT “B”, TEMA, HELD ON FRIDAY THE 29TH DAY OF DECEMBER, 2023, BEFORE HER HONOUR KLORKOR OKAI-MILLS, CIRCUIT COURT JUDGE SUIT NO. C5/118/23 WONDER GODFRED KUMADOR ----- PETITIONER VRS. NAOMI OPPONG ----- RESPONDENT PARTIES PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The incontrovertible facts of this case are that the petitioner, a mason and the respondent, a trader got married under Part III of the Marriages Act (1884- 1985), Cap 127, on 21st August 2010 at the full Gospel Church International, Tema Newtown. Subsequent to that, the parties cohabited at Tema New Town. There is no issue to the marriage between the parties. The petitioner filed the instant petition for divorce on 23rd June, 2023 alleging that the ordinance marriage celebrated between the parties had broken down beyond reconciliation and prayed the court for the dissolution of the marriage and a further prayer for an order for the parties to equally share the business situate at Dawhenya. The respondent entered appearance filed an answer to the petition for divorce and cross-petitioned as follows; a. The court should order the petitioner to refund the 16,000 to the respondent. b. The court should declare in my favor 50% share of the property acquired in the marriage. c. 50,000.00 financial compensation. The parties in their pleadings leveled accusations and counter accusations against each other in their quest to prove the breakdown of the marriage. Whereas the petitioner blames the breakdown of the marriage on alleged unreasonable behaviour exhibited by the respondent in the marriage and, the respondent also in an attempt to be modest about the events in the marriage, states that it is as a result the unreasonable behaviour exhibited by the petitioner in the marriage. It is the case of the petitioner that after the marriage, he opened a business outlet for the respondent but he never asked for the respondent to account any profit from the business to him, though he asserts that he solely maintained the home. The petitioner avers that after the marriage, the respondent deliberately does things to annoy him because she has intimated to him that she will do everything to see him behind bars. According to petitioner, the respondent has said that she will have her own children after she separates or divorces him. Petitioner further states that while he had done everything including orthodox medicine to address their childlessness, respondent has not been cooperative with the treatments and still blames him through her utterances that he is the cause of their childlessness. Petitioner avers that respondent used profits realized from the business to acquire land in her hometown, Akim Ofoase. He states that the respondent now runs the business with her brother and is hostile to petitioner when he goes there. According to him, he and the respondent have been in the matrimonial home without talking to each other for a whole one year and there has not been any form of sexual intimacy during that period. He furthers states that all efforts by family, friends and elders to resolve their differences has proved futile and therefore prays for a dissolution of the marriage. The respondent is agreeable that the marriage between the parties has broken down beyond reconciliation but denied the allegations of unreasonable behavior levelled against her by the petitioner. According to her, she was already a trader and after the marriage, both she and the petitioner contributed to build the container shop. The respondent further contends that the petitioner was not solely responsible for the upkeep of the home and that she used some of the profit from shop to take care of the home without asking for a refund from the petitioner. The respondent denies that she does things to annoy the petitioner and denies that she ever said she would have her own children after she divorced respondent. The respondent also states that money she sued to purchase the land at Ofoase was her share of money she got from the cocoa farm she inherited from her late father, and not money from the business. The respondent avers that it is because of tension created by petitioner himself that prevented him from coming to the shop and that her brother is there only giving her a helping hand. Respondent admits petitioner’s assertion that indeed, for about a year now, petitioner has been sleeping in the living room, but she dares not question petitioner on same. She also indicates that no meeting has been held by families to try and reconcile the differences between them. The respondent says that the marriage has indeed broken down beyond reconciliation because petitioner continues to be ungrateful to her. On the issue of property, respondent avers that they acquired a land at Dawhenya and have an uncompleted building on it. The respondent further states that the petitioner took her 13,000.00 without her consent from their room and also took her 3000.00 to buy a microphone for his church. Respondent says the petitioner does not deserve any share of the business because after the petitioner help build the container, he did not contribute anything to the running of the business and all the funds she has used to run the house is from the business. She confirms that the marriage has indeed broken down and also prays for dissolution. LEGAL ISSUES 1. Whether or not the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. 2. Whether the petitioner is entitled to equal share of the business situate at Dawhenya 3. Whether respondent is entitled to a refund of 16,000.00 from the petitioner 4. Whether the court should declare that respondent is entitled to 50% share of the property acquired in the marriage 3. Whether respondent is entitled to GHC50,000.00 financial compensation ANALYSIS It is trite learning that in civil cases, he who asserts must prove and the standard of proof is proof on a balance of probabilities only. This standard of proof is applicable to a petition for divorce. In the case of Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey and Others (2003-2004) SCGLR 420, 464, the Supreme Court stated that “it is trite learning that by the statutory provisions of the Evidence Decree 1975 NRCD 323, the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issue(s) asserted and or denied”. Also, in the case of Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 @901, the Supreme Court per Brobbey JSC held as follows: “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of the probabilities and would not win on that issue only because the original claim has failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.” Thus, the burden is on the petitioner to prove the facts alleged to establish the breakdown of the marriage. Where, as in the instant case, the respondent has also cross-petitioned, she bears the burden to prove her cross-petition on a balance of probabilities. ANALYSIS ISSUE 1: Whether the marriage between the parties 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 namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for two (2) years, failure to live as man and wife for five (5) years and irreconcilable differences. Additionally, under Act 367, a court may 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. Accordingly, a petitioner and his or her counsel are mandated to inform the court of all attempts made at reconciliation and the court may adjourn proceedings for the parties to attempt reconciliation. See Section 8 of Act 367. In the case of Donkor v. Donkor [1982-1983] GLR 1158, the High Court, Accra, per Osei-Hwere J, held that: “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3), which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation…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 Matrimonial Causes Act, 1971, (Act 367) does not define behaviour and the specific conducts that amount to unreasonable behaviour. Rayden on Divorce (14th ed., 1983) defines behaviour as follows; “Any conduct, active or passive, constitutes behaviour. The behaviour is not confined to the behaviour of the respondent. The behaviour may have reference to the marriage although it is to other members of the family or to outsiders. Any or all behaviour may be taken into account: The court must have regard to the whole history of the matrimonial relationship. But behaviour is something more than a mere state of affairs or a state of mind: behaviour in this context is action or conduct by the one, which affects the other: It may be an act or omission or course of conduct; but it must have reference to the marriage…” In the instant case, both the petitioner and the respondent made allegations and counter allegations of unreasonable behavior within the meaning and intendment of section 2(1)(b) of Act 367. To succeed under section 2(1) (b), the petitioner must prove the respondent’s conduct constituting unreasonable behavior, 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”. To prove the breakdown of the marriage, the parties made mutual accusations against each other, each party relying on unreasonable behavior by the other. The parties, per their accusations and counter accusations are agreeable that their marriage has broken down beyond reconciliation but whereas the petitioner blames the respondent for the breakdown of the marriage, the respondent also blames their marital woes on the attitude the petitioner exhibited in the marriage. The petitioner testified respondent makes rude marks to him, deliberately annoy him and indicated that upon divorcing petitioner, she would bear her own children. The Attorney further testified that the respondent has used profits realized from the shop to acquire land in her hometown and respondent does not cook, wash or do anything to support him financially or emotionally. He alleges that the respondent does not respect him as her husband and her unreasonable behavior has caused him so much psychological and emotional stress. Petitioner in his testimony also stated that the parties have been in the same matrimonial home for a year without talking to each other and there has been no form of sexual intimacy during that period. The respondent, on her part testified that soon after they got married, they both contributed and built a container shop together. The respondent further testified that upon the death of her sister, she inherited her business and added her stock to the business. The respondent denies that petitioner pumped money into the business and avers that rather, she always reimbursed petitioner for goods he bought for the shop. She further averred that petitioner can travel two years without communicating with her The respondent added that contrary to petitioner’s assertion that she used funds from the business to purchase the land at Ofoase, she used funds she inherited from her share of her father’s cocoa farm to purchase same. According to her, the petitioner has been using the sitting room as his sleeping place for reasons best known to himself. The respondent also states they acquired a land at Dawhenya and they have an uncompleted building on it. According to respondent, petitioner took GHC13,000.00 belonging to her without her consent and also took another GHC3,000.00 to buy a microphone for his church. The respondent further testified that the petitioner is not entitled to any share in the container because after they jointly built it, petitioner did not contribute anything to the running of the business. She also stated that the petitioner does not provide any family for the funds, so she used money from the business to maintain the house. The parties, even though they made allegations and counter allegations of unreasonable behavior, did not conduct rigorous cross-examinations. As such, the allegations and counter allegations made against each other remain unproved. The evidence on record shows that the parties, for at least a year before the presentation of this petitioner, have lived separately from each, though still in the same house and there have therefore been no consortium between them. Based on the evidence led, in the instant case, the matrimonial history of the parties reveals that there is a deep crack in the marriage and the parties, and they have had deep misgivings about each other. A common thread that runs through the testimony of the parties is that from the onset, their marriage has been bedeviled with challenges resulting in serious differences between the parties which the parties after diligent efforts have been unable to reconcile their differences. The evidence on record shows that the parties do not trust each other and there are allegations of theft of money by the respondent against the petitioner. On the totality of the evidence led by the parties, I hold that the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition and cross-petition for divorce and decree for the dissolution of the marriage celebrated between the parties. ISSUE 2: Whether the petitioner is entitled to equal share of business situate at Dawhenya. ISSUE 4: Whether or not the parties acquired the properties during the pendency of thee marriage and whether it should be distributed equitable. Issues 2 and 4 will be dealt with together as this is more efficient and exhaustive of the issues of joint marital property raised in this instant matter. Article 22 (3) (b) of the 1992 Constitution provides that: "Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of marriage". In the case of Arthur (No 1) v. Arthur (No.1) [2013-2014] 1 SCGLR 543 it was 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.” The Supreme Court in the case of Peter Adjei v. Margaret Adjei (unreported) [Suit No. J4 06/ 2021] delivered on 21st day of April, 2021, the Court per Appau, JSC (as he then was) reiterated the position of the law on the presumption of joint ownership when His Lordship stated at page 10 as follows: “…any property that is acquired during the subsistence of the marriage, be it customary or under English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on equality is equity principle. This presumption of joint ownership is, however, rebuttable upon evidence to the contrary… What this means in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as a “jointly-acquired” property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired, irrespective of whether there was direct, pecuniary or substantial contribution from both spouses in the acquisition.” Therefore, marriage does not guarantee spouses unwarranted access and share in properties acquired by the other spouse through their individual sweat and efforts. The onus is thus on the petitioner in this case who is claiming 50% share in the house in issue to first lead cogent and admissible evidence to establish that the property in dispute was jointly acquired during the subsistence of the marriage. In the case of Tetteh v. T Chandiram & Co Gh Ltd & Others [2017-2020] 2 SCGLR 770, the Supreme Court affirmed the good old principle on what constitutes proof of an averment when it held in its holding 2 that where a party alleged a claim but was denied, it was the duty of that party to adduce credible evidence to prove the claim and not just mount the witness box and repeat her pleadings especially when the claim was capable of positive proof. The petitioner in the instant case maintains that he contributed to the setting up of the container shop and is therefore entitled to 50% of same. In their testimonies, both petitioner and respondent agreed that they both contributed to the setting up of the container shop – where they diverge in views is the subsequent contribution or otherwise of the petitioner to the running of the shop. During cross examination of respondent by petitioner on the issue of the container, the following ensued: Q: Who put up the shop for you? A: We did it together Q: What was the motive behind the shop I built for you? A: We did it all together. I have no answer. Given the fact that the joint contribution of the setting up of the container shop is not contested by either party, I will, accordingly, hold that the petitioner is entitled to fifty-percent (50%) share of the container jointly built by the parties during the subsistence of the marriage. The parties shall be entitled to 50% each of the actual container shop itself after it is valued by a court appointed valuer within three months of this order. The respondent may offer to buy out the petitioner and pay petitioner half of the value of the container within one year from the date of the service of the valuation report on them. The parties will bear any liabilities and the cost of valuation jointly. The petitioner did not lead any evidence to the effect that he made any contribution to the contents of the shop and therefore the contents of the shop are solely settled on the respondent. The other marital property raised in issue in the matter is the land situate at Akim Ofoase which respondent asserts she used her inheritance from her late father’s cocoa farm to acquire and which petitioner insists was bought using proceeds from the container shop. The petitioner did not petition for a share in the land in his reliefs and the respondent insists same belongs to her alone. Though both parties agree that the land in question exists, neither party led any evidence, i.e. site plan, indenture, receipts to enable the court ascertain whether the land actually exists or not. The Court is therefore unable to make a finding as to whether the land exists and to whom this said land belongs to. Any claim to same is therefore dismissed. The respondent, in her pleadings averred that they acquired a plot of land at Dawhenya and they have an uncompleted building on it. The petitioner never acknowledged this in his pleadings. In the case of Sarpong (Decd) (Substituted by) Koduah v. Jantuah [2017-2020] 1SCGLR, the Supreme Court held in its holding 4 that: “The principle enunciated in Majolagbe v. Larbi [1959] GLR 190, did not mean a party should not repeat what had been pleaded in evidence. What the principle meant was that, that party should lead such evidence as would constitute proof in law. Since a party was required to stick to his pleadings when giving evidence, there was nothing wrong where that party repeated on oath what had been pleaded; the only consideration of the court was to ascertain whether what the party had said on oath was sufficient to discharge the burden of persuasion that laid on him…” The following ensued during cross examination of petitioner by respondent on the issue of the land in question: Q: We have land at Central. We are building on. We are almost done. Is that so? A: We have land. We have not finished putting up the building and even the land, we have not finished paying. This February, the land owners called me for the balance of the money. I told them I have no money so they can sell the land because I have not finished paying. They have not given me any document pertaining to the land. Q: I gave you money to buy the land A: You did not give me money to buy the land. You gave me part and I added the remaining part of the offense Q: The money I gave you, how much money did you add to the money I gave you? A: She gave me GHC20,000.00 The respondent repeated her pleadings on the existence of this land at Dawhenya under oath without any independent evidence. Petitioner did not also provide any evidence. Any claim to this alleged land at Dawhenya if it is countenanced in respondent’s petition as jointly acquired marital property is hereby dismissed as no evidence has been led by either party of its existence. ISSUE 3: Whether the respondent is entitled to a refund of GHC16,000.00 from the petitioner. As already addressed in issues 4, in Sarpong (Decd) (Substituted by) Koduah v. Jantuah [2017-2020] 1SCGLR, the Supreme Court held in its holding 4 essentially that more than just pleading in your statement, a party has to lead actual evidence to hold as substantial proof in law. The respondent never led any shred evidence to prove that indeed petitioner did dishonestly appropriate GHC16,000.00 belong to her and which should be settled on her by the court. She stated this in her petition and repeated same under oath in her witness statement and left the issue at that. I therefore hold that respondent failed to prove that petitioner stole her GHC16,000.00 for which petitioner should be ordered to refund same. The prayer to have petitioner refund GHC16,000.00 to respondent is hereby dismissed. ISSUE 5: Whether respondent is entitled to GHC50,000.00 financial compensation. Section 20(1) of the Act 367 in the following terms; "The court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the court thinks just and equitable." From the law, financial provision upon the dissolution of a marriage is not the exclusive preserve of women and that, the court, may, if the justice of the case demand, award financial provision for either the man or the woman. In the case of Barake v. Barake [1993-1994] I G. L. R 635 at page 666, where Brobbey J (as he then was) stated: “On such an application, the court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.” The award of lump sum financial provision under Act 367 is therefore need based and it is not intended to enrich one spouse at the expense of another or punish the one who is to be blamed for the breakdown of the marriage. In the case of Obeng v. Obeng [2013] 63 GMJ 158, the Court of Appeal held that what is “just and equitable” may be determined by considering the following factors: the income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage.” The respondent testified that she is a trader. The petitioner testified that he is a mason. The petitioner did not give a solid basis for the claim of financial provision and the respondent also did not make a case of award of financial provision in his favour. The parties are relatively young and the prospects of the parties finding love and remarrying is high. There are also no issues in the marriage to justify such a claim by respondent. The parties also have some working years ahead and they have not afforded the court the opportunity to compare their earning capacities and the specific needs to assist the court to arrive at a fair and just determination. I therefore dismiss the petition for financial provision. CONCLUSION In conclusion, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition and the cross-petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent on 21st August, 2010. 2. The parties shall present the original copy of the marriage certificate for cancellation by the Registrar of the Court. 3. The petitioner and respondent shall equally share the actual container shop from which the business is conducted; the respondent may have the court appointed valuer value and pay the petitioner 50% of the value of the container shop. Both parties will bear the cost of the service of the court appointed valuer. 4. The respondent is entitled to the actual contents/products in the container. 5. Respondent’s claim for the parties’ land at Dawhenya is hereby dismissed. 6. Respondent’s prayer for petitioner to refund an alleged stolen amount of GHC16,000.00 is hereby dismissed. 7. The respondent’s claim for lump sum payment of GHC50,000.00 is hereby dismissed. 8. No order as to costs. H/H KLORKOR OKAI-MILLS (CIRCUIT COURT JUDGE) (SGD) 15