BOIQUAYE VRS BUTON (A8/34/22) [2024] GHADC 49 (23 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 23RD FEBRUARY, 2024. SUIT NO. A8/34/22 MOSES NII OKAI-KOI BOIQUAYE ::

PETITIONER H/NO. B232/3 AD01 AGBALO ST. LATERBIOKORSHIE, ACCRA VRS. DORIS ATSERE BUXTON ::

RESPONDENT H/NO. BC131 OUTER RING RD, GA-403-9705 LATERBIOKORSHIE, ACCRA

JUDGMENT

INTRODUCTION The marriage on trial originates from a Petition for Divorce filed on 19th October, 2021 by the Petitioner in this Honourable Court. The Petitioner, a Teacher and the Respondent, a Trader, married on the 19th of December, 1998 under the Ordinance at the Church of MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 1 Pentecost, Mamprobi Assembly. The parties cohabited in various locations in Accra thereafter. During the pendency of the marriage, the parties have had five issues by name; Judah Boiquaye, Judy Boiquaye, Joana Boiquaye, Josephine Boiquaye and Jehoshua Boiquaye who at the commencement of the suit were respectively aged 20, 19, 16, 13 and 8. The Petitioner prayed this Court per his Petition for the following reliefs: a. Dissolution of the marriage between the parties. b. Custody of Joana Boiquaye 17 years, Josephine Boiquaye 13 years and Jehoshua Boiquaye 8 years to Respondent with reasonable access to Petitioner. The Respondent also prayed this Court per her Answer with Cross Petition filed on 5th November 2021 for the following reliefs: a. Dissolution of the marriage between the parties. b. Custody of the issues of the marriage particularly Joana Boiquaye, Josephine Boiquaye and Jehoshua Boiquaye should be given to the Respondent with reasonable access to the Petitioner. c. An order directed at the Petitioner to rent a suitable accommodation or pay the rent for the

issue of the marriage. d. An order directed at the Petitioner to pay a monthly maintenance of GH¢1,500.00; e. That the Respondent be made to pay an amount of GH¢50,000.00 as financial settlement. f. Further or other reliefs as this Honourable Court deems fit. PLAINTIFF’S CASE According to Petitioner, their marriage has broken down beyond reconciliation as a result of Respondent’s unreasonable behaviour and their inability to reconcile their differences. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 2 Petitioner averred that the Respondent called his mother a witch and his father, a good for nothing old man. He added that the Respondent had stated that their daughter would not marry a Ga man and neither would the children emulate their grandparents’ character. It was the case of Petitioner that the parties have not lived together as man and wife for about five years now and that the Respondent though still married, was dating someone else who she cooked and washed for. He further asserted that he has lost all the love and affection he had for Respondent and can no longer stay married to her. RESPONDENT’S CASE The Respondent denied the allegations of unreasonable behaviour levelled against her by the Petitioner but admitted that the parties have been unable to reconcile their marital differences. According to her, in September 2016, she was informed by Petitioner of the expiration of

their tenancy and notice issued to them to vacate their rented apartment. Petitioner therefore asked her to assist him in searching for a new accommodation which she did and found one at Flamingo, Accra. However, Petitioner intimated that he had no money to pay the rent for the new place so she raised the funds needed and secured the place. According to her, they packed their belongings and that of the children and moved into their new accommodation but on reaching there, she realized that Petitioner’s belongings were not part of the things in the house. She stated that even though Petitioner promised to join them subsequently, he reneged on his promise. Petitioner therefore ceased cohabitation with her and has deserted her for about five years now. Respondent stated further that Petitioner has since September 2016, refused to be sexually intimate with her MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 3 and she cannot reasonably be expected to live with him. It was her case that the Petitioner provides only GH¢10.00 daily for the maintenance of the children of the marriage. PETITIONER’S REPLY The Petitioner responded to Respondent’s Answer by way of a Reply filed on the 26th November, 2021. Like the Respondent, Petitioner denied the allegations of unreasonable behaviour levelled against him by the Respondent. He stated that he provides for the children’s breakfast and lunch and also

gives them GH¢10.00 a day for supper during the weekdays and further gives GH¢40.00 during the weekends. Petitioner stated further that the responsibility of taking care of children was a shared responsibility and not the sole duty of one parent. He stated that he is prepared to contribute towards maintaining the children and towards renting accommodation for them. He however prayed this Honourable Court to award Respondent GH¢5,000.00 as financial provision.

ISSUES The main issues for the Court to determine are: a. Whether or not the marriage between the parties has broken down beyond reconciliation. b. Whether or not the Petitioner ought to be responsible for the children’s maintenance and accommodation. c. Whether or not the Respondent is entitled to be paid GH¢50,000.00 as financial settlement. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 4

EVALUATION OF EVIDENCE Issue a. Whether or not the marriage between the parties has broken down beyond reconciliation. It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323) as well as the cases of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 @ 900; GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458. To prove that a marriage has broken down beyond reconciliation, the law requires a petitioner to plead and prove to the satisfaction of the court, one or more of the six facts set out under Section 2(1) of the Matrimonial Causes Act (Act 367). Those facts in a loose list are; adultery, unreasonable behaviour, desertion, not living as man and wife for two years continuously with consent to divorce, not living as man and wife for five years continuously with no consent needed and irreconcilable differences. See Danquah vs Danquah (1979) GLR 371. The Court must be satisfied on all the evidence that the marriage has indeed broken down beyond reconciliation. See the case of Kotei v. Kotei [1974] 2 GLR 172. Both parties bore the duty to produce sufficient evidence in respect of their respective claims on the balance of probabilities. Section 1(1) of

the Matrimonial Causes Act, 1971 (Act 367) allows either party to a marriage to present a petition to the court for divorce. Section 1(2) of the Act further emphasizes that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. However, in order to prove that the marriage has broken down beyond reconciliation, a petitioner shall prove to the satisfaction of the court one or more of the six facts specified in section 2(1)(a)-(f) of Act 367. Proof of any one of these facts raises a presumption that the marriage has broken MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 5 down beyond reconciliation. If any of the facts is made out, the court must grant the dissolution unless it is satisfied that the marriage has not broken down irretrievably. The Petitioner testified by relying on his witness statement filed on 22nd March, 2022. His evidence was basically a repetition of his averments on oath; allegations of Respondent casting slurs on his parents, accusations of marital infidelity of Respondent, allegation that Respondent had stated that her daughter would not marry a Ga man and the sons would also not practice his appalling behaviour. Similar to the Petitioner, the Respondent also basically repeated her assertions contained in her pleadings on oath. The Petitioner relied on the fact of unreasonable behaviour whereas the

Respondent relied on the fact of desertion. I must state that in the midst of the denials made by the Respondent in respect of the allegations of unreasonable behaviour, the Petitioner had to do more than barely repeating his allegations on oath. It is trite law that bare assertions or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In the case of Majolagbe v Larbi & Anor [1959] GLR 190 @ 192 it was held that “where a party makes an averment capable of proof in some positive way, eg. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.” From the Petitioner’s evidence adduced before this Court, he stated that the Respondent had insulted his parents by calling his mother a witch and his father, a good for nothing old man. Petitioner further testified that the Respondent is now dating another man whom she has been washing and cooking for. Respondent however denied these allegations of unreasonable behaviour levelled against her by Petitioner. The Petitioner MOSES N.O. BOIQUAYE V. DORIS A.

BUXTON 6 therefore had to do more than barely repeating his averments on oath. The onus was on him to establish those allegations he levelled against the Respondent to the satisfaction of the Court. The Petitioner did not however prove to the satisfaction of this Court the unreasonable behaviour he preferred against the Respondent. Desertion has been captured under Section 2(1) (c) of Act 367. It has been defined under the Act as an unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently. Rayden in the 10th Edition of his book, “Divorce” at page 194 has also defined desertion as “the separation of one spouse from the other with an intention on the part of the deserting spouse to bring cohabitation permanently to an end without reasonable cause and without the consent of the other spouse, but the physical act of departure by one spouse does not necessarily make that spouse the deserting party”. Desertion therefore involves a physical withdrawal from a place and a withdrawal from the state of things. See Naylor v. Naylor [1961] 2 All.ER 129. For a party to establish desertion, it has to be proved that there has been an actual separation, an intention to bring cohabitation to an end, lack of consent to the separation by that party, want of reasonable excuse on the part of the other party and that

the separation should have been for a continuous period of at least two years and must exist at the time that the petition was filed. See the case of Hughes v. Hughes [1973]2 GLR 342. From the Respondent’s evidence, the parties had to leave where they were staying at Lartebiokoshie sometime in September 2016 when the Petitioner informed her that their landlord was not desirous of renewing their tenancy. She therefore secured a place at Flamingo and they packed out their belongings from Lartebiokoshie together with those of their children but unknown to her, the Petitioner did not transport his belongings to Flamingo with them. Ever since the parties have not lived together as husband and wife MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 7 since the Petitioner has failed to move in with her. The Respondent testified that the Petitioner had told her clearly that he is disinterested in the marriage and that accounts for why he has refused to cohabit with her or have sexual intercourse with her since September 2016. There is no denying the fact that the parties have been living separately since September 2016. The following as happened under cross examination of the Petitioner by Counsel for the Respondent is worth reproducing: Q: You agree with me that from September 2016 to date you have not lived with Respondent as husband and wife? A: That is so. Q: You have also within that period

had no sexual intercourse with her. A: Yes my lady. Q: You got separated from the Respondent after an agreement to quit a rented house at Laterbiokoshie. Is that so? A: Yes. Q: You agree that the Respondent resides in Flamingo. A: Yes. Q: In September 2016 you both agreed to move to Flamingo in Respondent’s residence, not so? A: No. Q: You want the Court to believe that parties mutually agreed to live separately after the rent expired at Laterbiokoshie? MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 8 A: Exactly my lady. Q: I put it to you that the agreement with Respondent was to move together to live in Respondent’s current residence. A: When it got to that point the current place at Flamingo is populated compound and I objected to staying in that compound so I asked for extension at where we were staying at the time but we both came to an agreement that she lives there while I live at the family house. Q: I put it to you that there is no such agreement. A: We agreed. Our families live in the area. That particular house has a lot of tenants and I gave two different options. The first was to extend our stay at the expired place or move to my family house where I have two rooms and where we lived some time back. She opposed the latter beacuse she had issues with my parents. That is how we came to an agreement that we live separately. It is essential to put on record that the Petitioner

in his Reply and even in his evidence- in-chief (adopted witness statement) never made mention of any alleged agreement between the parties in respect of staying apart or the fact that he had from the onset opposed the accommodation the Respondent found. As a matter of fact, he did not deny paragraphs 12, 13, 20 and 21 of the Respondent’s Answer. The said paragraphs are reproduced below: 12. By reason of the fact that the parties herein were required to vacate their residence, Respondent mobilized some funds and paid for the rent of the new accommodation at Flamingo. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 9 13. Respondent says that parties herein immediately within the same month of September 2016 packed all their belongings including that of their children and were straight away transported by the Petitioner personally to their new residence at Flamingo, Accra.

20. Respondent further says that the Petitioner has not only deserted her but Petitioner has behaved in a way that the Respondent cannot reasonably be expected to live with him.

21. Respondent says that by Petitioner’s act of desertion and avoidance, he has caused the Respondent much anxiety, distress and embarrassment. I find the Petitioner’s new line of defence to the separation as an afterthought and I do not believe that assertion of an agreement to the separation at all. If there were indeed two options he had proposed being either staying in his family house or extending their stay in the Laterbiokoshie house and he himself said the Respondent was uncomfortable with the former, he could have extended their stay in the Laterbiokoshie house and not made the Respondent go through the hustle of acquiring another accommodation for them all. There is a factum separation (actual separation) of the parties since September 2016. The Petitioner in refusing to live with the Respondent had purposed not to return to the matrimonial home and that accounts for why he has not gone to stay with her since then or even organized for a new accommodation for the Respondent and the children to live with him, if indeed he was uncomfortable with the place of residence of the Respondent. His aim clearly is to end cohabitation (animus deserendi) and it is apparent from the evidence before the Court that this separation was not one with the Respondent’s consent. Petitioner’s conduct of abandoning the matrimonial home is unreasonable and he is found by the Court to have

deserted the Respondent and their children. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 10 The Court being satisfied with the evidence adduced by the Respondent in respect of the allegations made concludes that the marriage has broken down beyond reconciliation thus entitling the Respondent to her relief for the marriage to be dissolved. I find the Petitioner to have been caught under Section 2(1)(c) of Act 367 for deserting the Respondent and the children. The evidence also shows the existence of the fact under Section 2(1)(e) since the parties have not been living as husband and wife for about five years prior to the presentation of the Petition by the Petitioner. All these prove that the marriage between the parties has broken down beyond reconciliation. Issue b. Whether or not the Petitioner ought to be responsible for the children’s maintenance and accommodation. 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). Also, 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; MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 11 (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. Respondent prayed for the custody of Joana Boiquaye, Josephine Boiquaye and Jehoshua Boiquaye. Petitioner did not oppose the prayer made by Respondent. According to the Respondent, the Petitioner has not been maintaining the children of the marriage adequately. Petitioner on the other hand testified that he has been taking care of the children and has been the one providing all their needs. He testified that he was ready to contribute towards the renting of accommodation for the issues of the marriage and maintaining them. In making decisions concerning custody or access, the Court ought to avert its mind to matters such as the age of the child, the importance of a young child being with his/her mother, the need for continuity in the care of the child, desirability of siblings to live together, among others. From the evidence adduced, Joana Boiquaye, Josephine Boiquaye and Jehoshua Boiquaye were 16 years, 13 years and 8 years respectively at the time the

action was instituted on 19th October, 2021. Having regard to the date today, Joana Boiquaye, Josephine Boiquaye and Jehoshua Boiquaye will be 19 years, 16 years and 11 years respectively this year. Joana Boiquaye having attained the age of majority, she is at liberty to decide for herself which of the parties she desires to dwell with. I do not see anything on record rendering the Respondent unfit to have custody of the minor children and as such, she is granted custody with reasonable access granted to the Petitioner. Section 47 of Act 560 provides in part as follows: MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 12 (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 the children. 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 Trader. 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, and not only one party has to be burdened with such responsibilities. The Petitioner testified that he has been responsible for the maintenance of the children and the evidence on record supports his testimony, except that Respondent testified that the money Petitioner provides as maintenance is not adequate. Indeed, the amount provided as maintenance is woefully inadequate. The Respondent also testified that she has been assisting in the maintenance of the children as well. The Petitioner is to maintain the three younger children monthly at GH¢ 1,000.00, and pay the educational and health expenses of the children of school-going age as they fall due. The Respondent is also to be responsible for the children’s accommodation and day-to-day clothing needs. Issue c. Whether or not the Respondent is entitled to be paid GH¢50,000.00 as financial settlement. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 13 The Respondent prayed this Court for financial provision of GH¢50,000.00. In response to this, the Petitioner also prayed this Court to award Respondent financial provision of GHȼ 5,000.00 instead. Under Section 20 of the Matrimonial Causes Act, 1971 (Act 367) the Court may amongst others, 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. 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 MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 14 to rent a premises for herself and her children, and to set herself up in business, and 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, I find from the Petitioner’s pleadings and his evidence-in-chief that he himself acknowledges that the Respondent is deserving of some financial settlement. Considering the various factors which this Court ought to avert its mind to and the present circumstances of this case, I am of the opinion that an amount of GH¢ 10,000.00 is fair to be awarded to the Respondent as financial settlement.

CONCLUSION Having found that the marriage has broken down beyond reconciliation, I grant the relief for a dissolution of the marriage and consequently decree that the marriage celebrated between the parties on 19th December, 1998 at the Church of Pentecost, Mamprobi Assembly is hereby dissolved. The Court also makes the following orders: a. Custody of Josephine Boiquaye and Jehoshua Boiquaye is granted to the Respondent with Petitioner granted reasonable access to them. b. The Petitioner is to maintain the three younger children monthly at GH¢ 1,000.00 and pay the educational and health expenses of the children of school going age. c. The Respondent is to be responsible for the children’s accommodation and day- to-day clothing needs. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 15 d. The Petitioner is to pay alimony of GH¢10,000.00 to the Respondent. AMA ADOMAKO-KWAKYE (MS.)

DISTRICT MAGISTRATE

COUNSEL Stanley Boye-Quaye, Esq. for the Petitioner Emmanuel Hammond, Esq. for the Respondent. MOSES N.O. BOIQUAYE V. DORIS A. BUXTON 16