ODAMTTEN VRS OSABUTEY (A8/35/20) [2024] GHADC 20 (2 February 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’ KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 2ND FEBRUARY, 2024. SUIT NO. A8/35/20 EMMANUEL KONEY ODAMTTEN TESHIE, ACCRA. :: PETITIONER VRS. WINNIEFRED ABUE OSABUTEY :: RESPONDENT ACCRA Introduction JUDGMENT The Petitioner commenced this action against the Respondent on 4th November, 2019 praying for the following reliefs: a. The marriage celebrated between the parties on 1st September, 2012 be dissolved. b. The Respondent be granted custody of the children of the marriage, namely Jayda Naa Dromo Odamtten aged 6 and Jason Nii Djormor Odamtten aged 2 with reasonable access to the Petitioner. The Respondent also by way of Cross Petition prayed for the following reliefs: a. That the marriage between the parties be dissolved on the Cross Petition. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 1 b. That Petitioner be ordered to pay by way of maintenance a monthly amount of ¢ 700.00; c. That the Petitioner be ordered to find and pay for a suitable accommodation for all the children; d. That the Petitioner be ordered to pay the school fees of his two (2) children namely Jayda Naa Dromo Odamtten aged 6 years and Jason Nii Djormor Odamtten aged 2 years and medicals as well. e. That the Petitioner be ordered to pay an alimony in the sum of ¢ 15,000.00. f. That the Petitioner be ordered to pay the loan used in construction of the bakery which he has rented out or in the alternative, the Court should make an order for Respondent to rent out the bakery in order to defray the cost used in the building. g. Any or further reliefs that this Honourable Court may deem fit. The undisputed facts are that the parties who are both citizens of Ghana and a Teacher and Civil Servant respectively, married under Part Three of the Marriages Act, 1884-1985 (Cap 127) on 1st September, 2012 at the Royalhouse Chapel International, La Branch, Accra. They have two children who at the date of institution of the suit were aged 6 years and 2 years respectively. Written Statements (Pleadings) It is the Petitioner’s case that the marriage between the parties has broken down beyond reconciliation, with Petitioner alleging unreasonable behaviour against the Respondent and their inability to reconcile their differences as the facts being relied on for his prayer sought in this Court. According to him, the Respondent exhibited disrespect towards him, failed to cooperate with him, failed to appreciate his efforts in the marriage and neglected her motherly and wifely duties, spending most of her time outside the home to EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 2 the extent that on one of such occasions, she left their child behind and travelled with a man by name Omanhene to Ada for a festival where she spent about a week there with the said man. He stated that the Respondent often denied him the opportunity to have sexual intercourse with her. He averred that the Respondent permitted her mother and siblings to stay in the matrimonial home a year after their marriage, without any prior discussion with him and when he complained, the Respondent packed out of their matrimonial home. This, Petitioner stated, became customary as Respondent always packed her belongings to her mother’s residence whenever he complained about her conduct. He stated that there was excessive interference in their marriage by the Respondent’s mother. According to him, the Respondent confessed being engaged in extra marital affair and apologized to him when he confronted her. He averred that the Respondent broke into their matrimonial home at dawn with thugs who threatened to beat him, to pack out all her belongings even though he pleaded with her not to leave for the children’s sake and the parties have since not lived together as man and wife. The Petitioner asserted that he cannot reasonably be expected to live with Respondent as her conduct has caused him great pain, distress and embarrassment. In her Answer to the Petition filed on 18th December, 2019, the Respondent denied the allegations of unreasonable behaviour levelled against her by the Petitioner, stating that it was rather the Petitioner who had behaved unreasonably. She averred that the parties cohabited at North Kaneshie after their marriage and a year thereafter, she took a loan to renovate Petitioner’s mother’s house and upon completion, the parties moved in. According to her, she reported their marital issues to Social Welfare, La Municipal Assembly and even though they both agreed on some terms, Petitioner failed to honour EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 3 the terms. She added that due to the love she had for Petitioner, she singlehandedly catered for all the expenses pertaining to their marriage since the Petitioner was at the time unemployed but when Respondent later secured a job, he neglected his responsibilities towards her and the children and never helped out in the home. It was her case that her mother only came to spend six weeks after the birth of their first child to assist in taking care of the child. Respondent asserted that she left their matrimonial home to a friend’s house due to Petitioner’s behaviour of insulting her. She averred that the Petitioner once attempted to stab her but she was rescued by a mason who was working in the house. According to her, anytime she moved out of their matrimonial home due to Petitioner’s unreasonable behaviour, Petitioner would apologize and assure her not to repeat such conducts however, shortly after she moves back, Petitioner returns to his old ways. She added that she has been the one who provides and caters for the children of the marriage with no support from the Petitioner. According to her, Petitioner has rented out the structure she built with the loan she took, without her permission and has been taking rent without accounting to her. It was her case that she pays all the utility bills, medical bills, school fees, clothing and all the other needs of the children as well as Petitioner’s. She averred that she has been cooking and washing and even on days when she is unable to do so, she hires and pays someone else to do it. She added that when Petitioner voluntarily washed, he demanded for payment from her. Respondent further asserted that aside being a civil servant, she has a bakery which required her to leave home early before the children woke up and it was at such times that the Petitioner bathed the children. Respondent stated that Petitioner on one occasion forcibly had sexual intercourse with her and asked her to take pills to avoid pregnancy EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 4 but she got angry and a quarrel ensued between the parties, which led to the Petitioner throwing her out the matrimonial home after telling her he was involved with another woman. She averred that she had to go to the Nungua Police Station in her night gown to lodge a complaint and she spent the night at her aunt’s residence at Labadi. She stated that she was later escorted by the police to the matrimonial home to take her belongings. According to her, the Petitioner stays with another lady in the matrimonial home and has cautioned her not to step foot in the house. She averred that the parties have been staying apart since May 2019 and attempts at reconciliation have been unsuccessful. The Petitioner responded to Respondent’s Answer by way of a Reply and Answer to Cross Petition filed on 26th March, 2020 wherein he denied the allegations levelled against him by the Respondent. According to him, Respondent only arranged for him to take a loan from her friend which amount was used to build a bath house for the parties’ use and same was repaid by him. He stated that he had a job before marrying the Respondent and he was the one looking after the Respondent and the children. He denied that there was any agreement reached at the Social Welfare Office. According to Petitioner, the parties agreed to give out the place to a mutual friend of the parties known as Noah to renovate and stay there rent-free until he gets a new place. He averred that the Respondent rejected his suggestion to enrol the children in an affordable school but rather, Respondent enrolled them in an expensive one which is way beyond his means. He added that the Respondent had refused to enrol the children in her father’s school where the children have been given full scholarship. He prayed that Respondent’s reliefs for him to pay monthly maintenance, provide accommodation and pay for the school fees as well as the medical bills of the children should be shared by the parties. Petitioner however stated that Respondent is not entitled to her prayer for alimony and EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 5 an ordered directed at him to pay the loan alleged to have been used to construct the bakery. Issues The main issues for the Court to determine are: 1. Whether or not the marriage between the parties has broken down beyond reconciliation within the purview of the Matrimonial Causes Act, 1971 (Act 367). 2. Whether or not the Petitioner is to maintain the children and provide them with accommodation. 3. Whether or not the school fees and medical expenses of the two children ought to be paid solely by the Petitioner. 4. Whether or not the Respondent is entitled to receive lump sum alimony payment from the Petitioner. 5. Whether or not the bakery was constructed by the Respondent from a loan which the Petitioner ought to pay for. Evaluation of evidence/Legal Analysis Issue 1 Any of the parties to a marriage can present a petition to Court to have his or her marriage dissolved once that party is able to prove that the marriage in question has broken down beyond reconciliation. See Section 1 of the Matrimonial Causes Act, 1971 (Act 367). For a party to successfully establish this ground, the Petitioner is under an obligation to prove to the Court’s satisfaction the existence of at least one of the six facts which have been listed in Section 2(1)(a) -(f) of Act 367. Once any of those facts is established, there is a presumption that the marriage has broken down beyond reconciliation and the Court EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 6 must grant the dissolution unless it is satisfied that the marriage has not broken down irretrievably. See the case of Kotei v. Kotei [1974] 2 GLR 172; Ash v Ash (1972) 1 All ER 582; Pheasant v Pheasant (1972) 1 All ER 587. These facts under Section 2(1)(a) -(f) of Act 367 include the following: a. that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or b. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or c. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or d. That the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; e. that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or f. that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Petitioner’s Witness Statement filed on 8th December, 2021 was adopted by the Court as his evidence in chief whereas the Respondent’s witness statement filed on 13th January 2022 was also adopted as her evidence-in-chief when she opened her defence. The Petitioner tendered in evidence a photocopy of the parties’ marriage certificate EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 7 confirming that the parties married on 1st September, 2012 at the Royalhouse Chapel International, Accra. In testifying in respect of their varied reasons for saying that the marriage has broken down beyond reconciliation, both parties’ evidence was essentially a reproduction of their averments in their respective pleadings, without more. Both parties denied the allegations of unreasonable behaviour they levelled against each other. The parties therefore had to do more than barely repeating their averments on oath. The onus was on each one of them to establish those allegations they levelled against each other to the satisfaction of the Court. It is trite law that bare assertions or merely repeating a party’s pleadings in the witness box without more does not constitute proof. See the case of Majolagbe v Larbi & Anor [1959] GLR 190 @ 192. A Petitioner may satisfy the court that a marriage has broken down beyond reconciliation by adducing evidence that are in tandem with Section 2 (1) (b) of Act 367 which is to the effect that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her. The Cambridge Advanced Learner’s Dictionary (4th Edition) has defined behaviour generally as “the way that a person behaves in a particular situation or under particular conditions.” Baker P in Katz v Katz [1972] 3 All ER 219 put it as follows: “behaviour is something more than a mere state of affairs or state of mind, such as for example a repugnance to sexual intercourse, or a feeling that the wife is not reciprocating the husband’s love, or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct by one which affects the other. Such conduct may either take the form of acts or omissions or may be a course of conduct, and, in my view, it must have some reference to the marriage.” Unreasonable behaviour in marriage can take several forms such as threats, assault or violence, extra marital affairs, amongst others. In dealing with behaviour, the question, is whether the Petitioner can reasonably be expected to live with the Respondent. The EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 8 Court ought to take cognizance of the personalities of the individuals before it and evaluate the impact of the respondent’s conduct on that particular petitioner, having due regard to the history of the marriage and their relationship. See the case of Livingstone- Stallard v Livingstone-Stallard; Knudsen v Knudsen [1976] 1 GLR 204; Mensah v Mensah [1972] 2 GLR 198. From the evidence of the Petitioner, the Respondent allowed her mother to live in their matrimonial home which gave her the opportunity to interfere in their marriage. Respondent on the other hand stated that her mother only came to the matrimonial home to assist her care for their first child when she was born. According to her, she did not stay for more than six weeks. Under cross examination of Petitioner however, when Petitioner was questioned about Respondent’s mother’s interference in their marriage, he elaborated how on several occasion, Respondent’s mother’s conduct affected the parties’ marriage. The following as happened under cross examination of Petitioner by Counsel for Respondent is worth reproducing: Q: I put it to you that the Respondent’s mother has never interfered in your marriage. A: That is not true because on countless occasions the Respondent’s mother calls her daughter and goes out with her, returning at odd hours. On one of these occasions, I questioned Respondent which led to an argument because she came back drank. Due to that, her mum packed her things and she followed her mum to her mum’s house and that became the norm. Respondent also together with her mum always try to have their say in the marriage. The mom comes to our place unannounced and decides to stay as long as she wants. When I questioned Respondent, she told me her mum was quarreling with her father so she needed a place to lay her head for some few days. These and many more prove there have been series of interferences in the marriage. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 9 The above evidence was not impugned. It is clear which same is borne out of the evidence adduced that Respondent’s mother’s conduct has had a negative influence on the parties’ marriage and same has contributed to the marriage’s current state. Petitioner again testified that the Respondent during the pendency of the marriage denied him the opportunity to have sexual intercourse with her. Petitioner had to beg Respondent before she allowed him. Respondent on the other hand did not deny this outright except to say that she was exhausted from work on those days. It is trite law that a wilful refusal by one spouse to have sexual intercourse entitles the party suffering to leave if in all the circumstances of the case it could properly be regarded as grave and weighty. Such conduct also amounts to a just cause for leaving even though it lacked the element of intent to injure. See; Opoku-Owusu v. Opoku-Owusu [1973] 2 GLR 349-354. Respondent’s refusal to be sexually intimate with Petitioner during the subsistence of the marriage is therefore unreasonable. Respondent on the other hand testified that the Petitioner neglected his duties as a father and a husband and did not assist in the home. I however found this partly true and partly untrue as the Respondent’s own evidence showed that the Petitioner had to take care of the children including bathing them when she left home early for work. The Petitioner’s evidence that his efforts are not appreciated is even evident from Respondent’s testimony that “the Petitioner has never lifted a finger to help me…”. This shows that the Respondent does not in any way acknowledge the assistance rendered by the Petitioner, which ought not to be so in a marital union. In respect of the children’s upkeep however, it is obvious from the evidence that the Respondent was the one who has been shouldering most of the responsibilities. Indeed, the Petitioner had even stopped providing for them. This is what transpired under cross examination of Petitioner by Counsel for the Respondent: EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 10 Q: You neglected your responsibilities as a father by failing to pay their fees and medical bills, I put it to you. A: No my lady. That is not so. I was in a marriage where my decisions did not matter. Q: Currently too, you do not pay the children’s school fees. Is that not so? A: Yes my lady because I do not know the school they are attending and that was not the agreement and my decision does not matter. Further under cross examination, this is what Petitioner said in respect of the questions he was asked: Q: When was the last time you gave her money to maintain the children? A: December 2021 and it was because anytime I send money what follows is insults, abusive words, how useless I am, what can Ghȼ 300.00 do and a whole lot. I have been communicating those to my lawyer so I decided never to call her or send her money because for her, it is meagre and she does not need it. It is clear from this piece of evidence that the Petitioner has for sometime now neglected to provide for the children of the marriage putting all the burden on the Respondent. His reason being that the Respondent often insults him and fails to appreciate his efforts. From the evidence adduced, the conduct exhibited by both parties during the subsistence of the marriage amount to unreasonable behaviour in the opinion of the court. Such conducts ought not to be present in a loving congenial relationship which was professed to be for life. Unreasonable behaviour is an objective test and this court is minded to conclude that both parties have behaved unreasonably, a fact this Court has found. On this basis, the court is satisfied that unreasonable behaviour under section 2(1) (b) of Act 367 has been properly established. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 11 Section 2(1) (f) of the Matrimonial Causes Act, 1971 (Act 367) is to the effect that, one of the facts for establishing that a marriage has broken down beyond reconciliation is to establish that the parties to the marriage have, after diligent efforts, been unable to reconcile their differences. It is evident from the evidence adduced before this court that the parties have put in efforts to solve their marital disputes but all their efforts have been fruitless. According to the evidence adduced before this Court, Respondent reported their marital issues to the Social Welfare Department however, the parties were unable to reach any amicable settlement. Even after the initiation of this suit, the parties were referred to the Court connected Alternative Dispute Resolution mechanism in order for parties to settle their ancillary matters. The parties were unable to cooperate with each other in respect of their ancillary issues. The intervention of Respondent’s aunt as well as the police did not do anything to help the parties to settle their differences. If it did anything, it facilitated their separation. Even during cross examination, Respondent agreed with Petitioner that their marriage was not working. This is what happened under cross examination of Respondent by Petitioner: Q: Would you agree with me that our marriage was not working and this was due to your behaviour? A: Yes, it was not working but not because of my behaviour. I was the bedrock and breadwinner of the family. I catered for all the needs of the children… Clearly, all attempts by well-meaning family members and loved ones have been unsuccessful. The Court therefore finds as a fact that the attempts at settlement of the parties’ differences have not been successful despite steps taken in that respect. It is important to also note that the parties have been living apart from each other since 2019. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 12 The Court is satisfied from the evidence that the parties’ marriage has broken down beyond reconciliation. Issues 2 and 3 In issues concerning the child, it is the best interest of the child which is the paramount consideration as stipulated by Section 2 of the Children’s Act, 1998 (Act 560). Section 22 of Act 367 provides that: (1) In all proceedings 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 on application by a party to any proceedings under this Act, make any 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), an order under that section may— (a) award custody of the child to any person; (b) regulate the right of access of any person to the child; (c) provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. There appears to be no issue concerning custody. The children are with the Respondent and the Petitioner also prayed for Respondent to be granted custody with reasonable access granted to him. The Court sees no reason to refuse to grant custody to the Respondent and as such, custody is granted to her of the two children. The Petitioner is to have access to the children every fortnight weekend; from Fridays after school to Sundays by 4pm. During vacations, the parties are to have equal custody. Section 47 of Act 560 provides in part as follows: EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 13 (1) A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. According to Section 124 of Act 560, a ‘parent’ means natural parent and includes a person acting in whatever way as parent. the parties herein are the natural parents of Jayda Naa Dromo Odamtten and Jason Nii Djormor Odamtten. They are thus captured within the ‘parent’ used in Section 47(1) of Act 560. As parents, they are under an obligation, and consequently, legally liable to see to the welfare of their children such as in the area of their feeding, education, health, amongst others. The Petitioner is a Teacher and the Respondent is a Civil Servant and a baker. It appears from the evidence that the Respondent earns more than the Petitioner. The maintenance and general responsibilities of parents towards their children is not the sole responsibility of only one of the parents and as such, both parties are to contribute in taking care of them. In that light, the educational expenses of the two children are to be borne equally by the parties. The Petitioner is to maintain the children monthly at GH¢ 800.00 and be responsible for their health needs and expenses whilst the Respondent caters for their accommodation. Once she has custody of them, it is expected that she lives with them in whichever accommodation she herself finds for herself. Both parties are to be responsible for the day-to-day clothing needs of the children whilst the Petitioner also ensures that the children are provided with footwear and clothing during special occasions such as birthdays and during Christmas. Issue 4 The Petitioner prayed this Court for the award of alimony of GH¢ 15,000.00 to her. Under Section 20 of the Matrimonial Causes Act, 1971 (Act 367) the Court may amongst others, EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 14 order either party to the marriage to pay to the other party such sum of money as part of financial provision as the court thinks just and equitable. In considering financial settlement, some of the factors taken into consideration include the financial needs and resources of both parties, the standard of living enjoyed during the marriage and the parties’ current circumstances, the duration of the marriage, and the contributions made by each party to the welfare of the family, the parties’ conduct, station in life, age and means of the parties, any agreement, if any, made between the parties regarding alimony. It is necessary to state that there is no cut and dried rule but the peculiarities of each case inform the Court in making any decision in respect of financial provision or alimony, having regards to the specific facts and evidence adduced. The consideration of the award of lump sum payment should be made not in isolation from the earning capacity of a party; it should not cripple the other party’s earning capacity. In the case of Isaac Kwame Amoah Ahinful v Anne Marie Ahinful (2016) JELR 107733 (HC), the Court made reference to the 6th Edition of the Black’s Law Dictionary in defining alimony as: “…sustenance or support of the wife by her divorced husband and stems from the common law right of the wife to support by her husband. Allowances which the husband or wife by court order pays to the other spouse for maintenance while they are separated or after they are divorced (permanent alimony) …” and the Court was unambiguous that the award of alimony or financial provision, does not automatically follow an order of dissolution of a marriage. Thus, it is dependent on the circumstances of each case and must be just and equitable. In the case of Aikins v. Aikins (1979) GLR 223, the Court took into account factors such as the fact that the wife did not have any capital assets of her own, that for many years prior to the presentation of the Petition she had not worked, that she required some funds to rent a premises for herself and her children, and to set herself up in business, and EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 15 accordingly awarded her lump sum payment. The Supreme Court also granted the Petitioner in the case of Quartson v. Quartson [2012] 2 SCGLR 1077 a lump sum financial provision on the basis of need; the necessity for her to have some funds to survive on whiles she re-organized her life. In Beatrice Oye Plokhaar v Sterian Plokhaar (2016) JELR 108100 (HC), the Court also emphasized that the Court in deciding whether to grant financial provision to a party or not was to examine the need of the parties. In the present circumstances of this case, the Petitioner is a Teacher whereas the Respondent is a Civil Servant and a Baker as already stated. From the evidence, the breakdown of the marriage has not been occasioned by one party but both of them. The parties have been staying apart since May 2019 and by now they have settled in wherever they find themselves and have already picked up whatever pieces of their lives and moved on. I do take cognisance however of the fact that the Respondent has had to shoulder a lot of responsibilities during the times the Petitioner failed to look after the children. At least the Respondent is entitled receive some form of compensation for her efforts. In the circumstances, I see it fair to award her alimony of GH¢ 5,000.00. Issue 5 It is a fact I found that the land on which the bakery is sited is land belonging to the Petitioner’s mother which she permitted the parties to put up the bakery thereon. It is the contention of the Respondent that she put up the bakery with a loan she took which she is yet to liquidate, and as such she wants an order of the Court for the Petitioner to be ordered to pay the said loan or alternatively, for the Court to order her to rent out the bakery in order to defray the alleged cost used in the building. She stated that the Petitioner had without her permission, rented the structure out and does not account to her for the rent received. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 16 It is essential to put on record that the Petitioner had denied these allegations and stated further that the parties agreed to give out the place to a mutual friend of theirs known as Noah to renovate and stay there rent-free until he gets a new place. Under cross examination of the Petitioner by Counsel for the Respondent, he maintained his stance: Q: During the subsistence of the marriage, you know that the Respondent put up a bakery at a portion of your house. Is that not so? A: Yes, my Lady. Q: Currently you have rented it out and collected monies. Is that not so? A: No, my Lady, that is not so. It is factually untrue. I have not taken rent from anybody. Q: There is someone currently staying in that room. Is that not so? A: Yes my lady because that person happens to be a family friend. It was a decision of both of us. Q: I put it to you that at the time Respondent was staying with you, the place was not rented to anyone. A: That is not it my lady. I have not rented the place to anyone. The gentleman in question was preparing to move there upon mutual agreement of both of us. Q: I put it to you that Respondent never agreed with you to give the place to a family friend. A: The land in question belongs to my mum. The gentleman is our friend. Respondent agreed with me to give the place to him. Q: It is your mum who gave that place to both of you to develop. Is that not so? A: Yes, please because I talked her into that. Initially she did not agree. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 17 Q: I put it to you that you have rented the place to one Noah, collected money and not given any share to Respondent who went in for a loan to construct the building. A: That is not it. The Respondent therefore bore the burden of establishing that she went in for a loan to put up the structure, which amount is yet to be repaid and that the structure has been rented out. The Respondent however failed woefully to establish any of these. No evidence was adduced to show the details of the alleged loan such as from whom it was obtained, when it was obtained, how much was taken, etcetera. No evidence was also adduced to prove that the Petitioner was taking any form of rent from Noah. The Court cannot assist a party who has not assisted his or her own cause. How can the Court order the Petitioner to pay an undisclosed amount of money alleged to have been taken as a loan? How can the Court order the property to be rented out to recoup an unknown amount said to have been the cost used in building? There is no evidence of any expenditure made on record. The Court arrives at its decision based on the evidence (compelling evidence, I must say) presented to it and of course, placing same against the mandate of the law. I am afraid there is no such compelling evidence adduced by the Respondent and as such, her claim ought to fail. Conclusion The evidence on record attests to the broken-down state of the parties’ marriage as a result of the unreasonable behaviour of the parties for which reason they would not be expected to stay together as husband and wife, and due to their irreconcilable differences. I cannot imagine the tension that would be brought to bear in the matrimonial home, with its attendant unpleasant consequences for the children who through no fault of theirs, the marriage has gotten to this present state, should this Court decide against the grant of the dissolution of the marriage. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 18 In the light of the foregoing, I hold that: 1. The marriage celebrated between the parties on 1st September, 2012 at the Royalhouse Chapel International, Accra is hereby dissolved; 2. Custody of Jayda Naa Dromo Odamtten and Jason Nii Djormor Odamtten is granted to the Respondent with reasonable access granted to the Petitioner. The access includes the Petitioner having the children for weekends every fortnight and also having them for half of their vacation periods. 3. The educational expenses of the two children are to be borne equally by the parties. 4. The Petitioner is to maintain the children monthly at GH¢ 800.00 and be responsible for their health needs and expenses whilst the Respondent caters for their accommodation. 5. Both parties are to be responsible for the day-to-day clothing needs of the two children whilst the Petitioner also ensures that the children are provided with footwear and clothing during special occasions such as birthdays and during Christmas. 6. The Petitioner is to pay to the Respondent a lump sum of GH¢ 5,000.00 as alimony. 7. Parties are to bear their respective costs. AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) Counsel David Duodu-Asare, Esq. for the Petitioner. Naa Djamah Ayikoi-Otoo, Esq. for the Respondent. EMMANUEL K. ODAMTTEN V. WINNIEFRED A. OSABUTEY 19