Anderson Vrs Amoani [2023] GHACC 198 (27 March 2023)

IN THE CIRCUIT COURT SITTING HELD AT AGONA SWEDRU ON TUESDAY THE 27TH DAY OF MARCH 2023, BEFORE HIS HON JONATHAN D. NUNOO CIRCUIT JUDGE. 1 SUIT NO: A4/06/2022 EVELYN ANDERSON … …

PETITIONER VRS. RICHARD AMOANI . . .

RESPONDENT Parties Present.

JUDGMENT The Petitioner has filed this petition seeking the following reliefs:- a. An Order by this honorable Court that the customary marriage existing between both parties be dissolved. b. Further order by this honourable court to prevail on the respondent to maintain the two children namely (1) Gloria Nhyira Amoani (2) age 14 years and (2)Karen Amoani (4) years by providing all necessaries of life. c. An order by this Honourable Court to declare that the Petitioner is entitled to Uncompleted Apartment at Taller Block factory at Gomoa Buduburam. 2 d. A further Order by this Honourable Court that the petitioner is entitled to the Tipper Truck to enable her use same to care for the two children she had with the respondent (Sic) The Petitioner avers that she got married customarily to the respondent herein and which said marriage was witness by family members of both parties. That both parties were blessed with four (4) children, namely (1) Michael Amoani aged 18 and (2) Vaneca Amoani 14 tears (3) Gloria Nhyira Amaoni age 6 tears and (4) Karen Amoani age 4 years. Petitioner says that she is currently not in any gainful employment. Petitioner say that after the marriage, the love exhibited by the Respondent started to fade with insults, threats and high pressure which normally resulted to illness but petitioner’s wishes were that things would normalize so that they would continue

with their marital life since they were blessed with four children. Unfortunately, everything got worse so that there was no peace of mind and total neglect of family responsibilities and no communication. 3 That currently Gloria Nhyira Amoani and Karen Amoani are now under the care of the Petitioner whilst the rest are with the Respondent but the two children in the custody of the Respondent are partially cared for by Petitioner. That after some time the petitioner could no longer bear the humiliation and mental torture including severe pains in my eyes and head which resulted to blare sight and headache as a result of beatings, she reported the to the family members and at the arbitration, the customary marriage had to be dissolved giving way for each party to live on one’s own. That due to the complaints of torture and humiliation in the hands of the Respondent, I am not able to do my secretarial works which she used to do previously. That currently, the Respondent has not been taking care of the two children with her and it the sole duty of the Petitioner who now takes responsibility of the payment of the utility bills, feeding cost, paying the school fees of the children, and clothing among others including necessaries of life single handedly. That at the time of filing this petition against the respondent, there has not been any communication, no sex and no commitment

from the respondent even though, he is in a gainful business and could do so. 4 That due to the dissolution of the customary marriage the personal belongings of the Petitioner are still in the custody of the Respondent. Petitioner therefore comes to the conclusion that our marriage has collapsed beyond as it has been dissolved and therefore cannot see light again and humbly prays this Honourable Court to dissolve the customary marriage. The Respondent filed an answer to the petition in which he stated as follows:- 1. That save as hereinafter expressly admitted the Respondent denies each and every material allegation contained in the Petitioner’s Petition as if same were set out in extenso herein and denied seriatim.

2. That paragraphs 1 and 2 of the Petition are admitted/ 3. That the Respondent is not in the position to admit or deny paragraphs 3 of the Petition save that the petitioner left the matrimonial home over two (2) years ago and went to Saudi Arabia and the Respondent only got to know that she was back to Ghana when she lodged a complaint against him at DOVSU at Kasoa.

4. That the Respondent vehemently denies paragraph 4 of the petition and puts the Petitioner to strict proof of the averment. 5 5. That is answer to paragraphs 4 of the Petition, Respondent says it was the petitioner who disrespected and often insulted him without provocation claiming that the Respondent is an illiterate who is not up to her standard and or appealing to be his wife.

6. That the Respondent partly admits paragraph 5 of the Petition as to the absence of peace and communication between the parties due to Petitioner’s persistent disregard and disrespect for him but states in answer that he continued to maintain the Petitioner and the children for about two (2) years that the parties were not in talking terms though the Petitioner denied him food she prepares with the money he used to give her.

7. That save that the petitioner took Gloria and Karen to her mother and left to Saudi Arabia while the Respondent solely maintained them, the rest of the averment in paragraph 6 of the Petition is admitted.

8. That save that customary marriage between the parties has been dissolved at a meeting of family members of both parties in June 2020, the Respondent denies the rest of the averments in paragraph 7 of the Petition and the petitioner put to strict proof of same.

9. That the Respondent denies paragraph 8 of the petition puts the petitioner to strict proof of same. 6 10. That the Respondent denies paragraph 9 of the Petition. puts the petitioner to strict proof of same and states in answer that it was for a few months that the Respondent lost his job when his car owner died that he could not send money to petitioner’s mother but when petitioner came to Ghana she sent the matter to DOVVSU where Respondent was made to pay some money to Petitioner. Thereafter the Respondent sent money to the Petitioner through their daughter Vanessa since the petitioner has not been picking Respondent’s phone calls.

11. The Respondent admits paragraphs 10[7] of the Petition and states that he finds it impossible to have sex with a woman whose marriage with him has been properly dissolved.

12. That the Respondent admits paragraph 11[8] of the petition and states that, it was the Petitioner who left her belongings in the house and travelled to Saudi Arabia so she can come to collect same since the marriage has been dissolved.

13. That the Respondent admits paragraph 12[9] of the Petition to the extent that the Petitioner is not entitled to those reliefs since the marriage has already been dissolved and states that the Petitioner is not entitled to any relief stated in 9 (a),(b),(c), and (d). 7 14. In answer to paragraph 9 (a) and 9 (b) of the Petition, the Respondent states that the Petitioner is not entitled to those reliefs since the marriage has already been dissolved and the Respondent has been maintaining the said children.

15. That in answer to paragraph 9 (c) of the Petition, the Respondent states that he built the said house which is not yet fully completed without the contribution whatsoever from the Petitioner and also that is in the said house he currently lives with the other two children of the marriage.

16. That in answer to paragraph 9 (d) of the Petition aforesaid, the Respondent states that the Petitioner knows that that truck does not belong to him but to one Thomas from whom the Respondent want to buy but could not pay for same for which reason members of Mr Thomas’s family have seized same after his death and thus rendering Respondent jobless.

17. That the Respondent repeats paragraphs 1-16 therein and Cross – petition as follows: a) An order of the Court confirming the dissolution of the customary marriage between the parties before members from families of both parties. 8 The petitioner filed a reply to answer of the Respondent and cross-petition and denied all the averments in the respondent’s cross petition The Petitioner gave evidence regarding what led to the divorce but since the parties agrees that the marriage between the parties was customary marriage which has been dissolved in accordance with custom and the parties are not quarreling about the manner in which the marriage was dissolved, I will not spend time on that only to affirm and declare that the customary marriage between the parties have been customarily dissolved. The issues to be addressed is whether or not the Petitioner is not entitled to the uncompleted building because she did not contribute financially to its acquisition and whether or not she is entitled to the proceeds from the Tipper truck? The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and

until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court 9 by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. In the case of Ababio V Akwan III (1994-95) GBR 774 the Supreme Court reiterated the point at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. The burden of providing evidence as

well as burden of persuasion is on the both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities”. I will deal with the issues together. Whether the Petitioner is not entitled to a share of the uncompleted building because she did not contribute financially towards its acquisition and whether or not the Petitioner is entitled to the proceeds of the Tipper truck? 10 The law as stated is that if the property is acquired during the subsistence of the marriage the property is to be declared joint property whether there is substantial contribution from any of the spouse towards its acquisition is immaterial to entitle the other spouse to have a share. If the spouse is able to show substantial financial contribution towards the acquisition the court will take that substantial financial contribution into consideration in sharing the property between the parties in order to arrive at a just and equitable decision in the matter. Article 22 (2) (b) of the 1992 constitution provides that: (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It is stated by Date-Bah JSC in Patience Arthur V Mosses Arthur civil Appeal No J4/19/2013 dated 26th July, 2013, affirming the principle enunciated in the case of Mensah V Mensah [2012] 46 GMJ2 that

marital property to be understood as property acquired by the spouses during the marriage irrespective of whether the spouse has made contribution to its acquisition. Arthur V Arthur supra accordingly, states that in the light of the ratio decidendi in Mensah V Mensah supra it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage. 11 It has been held by Date –Bah JSC in Boafo v. Boafo [2005-2006] SCGLR that equality principle laid down in Mensah v Mensah [1998-99] SCGLR may be waived if in the circumstances of a particular case, the equities of the case would demand otherwise. See also Christiana Quartson V Pious Pope Quartson supra. See also the majority decision in Agyei v. Agyei J4 6 of 2021 (2021) GHASC 5 21 April 2021). The Petitioner asserts that she has lived with the Respondent for 20 years which he did not dispute and there is also no dispute that the building was acquired during the subsistence of the marriage. The Respondent issue is that it was the Petitioner who left the matrimonial home for two years and the marriage was dissolved so she cannot come back after two years to claim part of the property since the marriage has been dissolved and he was not to be blame for the dissolution. He alleged that he put up the building alone from

the proceeds from the use of the Tipper truck without any contribution whatsoever from the Petitioner. The Petitioner stated that the Respondent bought the land but she started the building project up to lintel level with sand and stone that the Respondent had on the land. She claimed that at point the Respondent sold the land when he wanted to travel abroad and the one who purchased the 12 land started the foundation of the story building but she was able to stop the transaction when she heard of the sale and retrieve the land. The Petitioner said she managed to connect water and electricity to the store which the Respondent denied and said he was the one who paid for the meter and the Petitioner used her name. I must say that none of the parties called further evidence in proof of these assertion so they remain mere allegation and very difficult for the court to tell which of the rival versions of the stories to accept and to place premium on it. I am referring to the starting of the building and the power and water connected to the house. The worth of this piece of evidence goes to show that the parties acquired the building during the subsistence of the marriage. In the case of Majolagbe V Larbi 1959 GLR 190 at 192 the court stated as follows; “Proof in law is the establishment of facts by proper legal means, when a party makes an averment capable of proof in some

positive way e.g. by producing document description of thing 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 the averments on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstance, from which the court can be satisfied that what he avers is true”. 13 From the evidence adduced it can be gleaned that the assertion by the Petitioner that she was able to retrieve the land was not controverted by the Respondent. The argument put forward by the Respondent that he put up he building without any assistance from the Petitioner does not hold water.so long as the property was acquired during the subsistence of the marriage it is a joint property and the Petitioner does not need to show that she contributed financially to the acquisition of the property before she will be entitled to a share. It therefore does not lie in the mouth of the Respondent to say that the property is for him alone and he put it up for his children. Whether the Petitioner left the marriage and it was dissolved does not disentitled her from getting a share of the property so far as the property was acquired whilst she was in the marriage. . The Respondent claims that there are no documents covering the land but he claims ownership of the building on

the land, so his argument that there is no document covering the land too does not mean anything so far as this matter is concerned. If he acquired the land and the document was prepared in his name alone the Petitioner still owns a share of the property since the Court has held that the property was acquired during the subsistence of the marriage, it 14 belongs to them jointly and after dissolution the property must be shared between the parties. In applying the law having declared the uncompleted building as jointly acquired. I will therefore grant the Petitioner 40% share of the property for the Respondent to take 60% share. In my view the equities of the case warrants sharing of the property in that manner. The evidence shows that the Respondent spent more money towards the acquisition of the property than the Petitioner but her contribution cannot be discounted With respect to the Tipper Truck the only assertion by the Petitioner herself was that she wants the proceeds of the Truck to unable her take care of the children but not all four children are in her custody. There is no need for the Court to order the proceeds from the truck to be given to the Petitioner to take care of the children. The Court has not been told how much comes from the truck daily or monthly and how much the Respondent was giving the Petitioner monthly. There was evidence of GHC70.00 housekeeping

money and the Petitioner saying GHC10 but I am not told which period this amount was given for the maintenance. Also two of the children are with the Respondent so if the Petitioner says that she practically looks after them. I do not know what she means the 15 Court can only look at the maintenance if the children in the custody of her attorney (mother). In as much as the Petitioner need to show that the Respondent was not taking care of the children, it is in my view that the Respondent has not been paying the school fees in bulk and on time. The Respondent himself acknowledges that for some time he was jobless that made him to stop sending money to the Attorney but that could not be an excuse. The Court will therefore order the Respondent to pay the fees if the children, pay GHC600.00 monthly maintenance allowance for the maintenance of the two (2) children in the custody of the Petitioner Attorney. In the result judgment of the Court is that the uncompleted building is declared matrimonial property and it belongs to the parties and they are to share same in the following manner: 60% for the Respondent and 40% for the Petitioner If the property is such that it cannot be shared it should be valued and if that is done Respondent is given the first option to buy the Petitioner out since the Respondent is the one living in the house with the other two children. Respondent is

unable to buy out the petitioner, then the Petitioner will be at liberty to buy the Respondent out in the alternative the property should be auctioned and the proceeds shared in the manner mentioned above. 16 The order in respect of the maintenance the children in the custody of the Petitioner’s Attorney is that the Respondent will pay GHC600.00 as monthly mainte1nance for the two children and pay their school fees and books and provide health care as well as other necessities of life The Petitioner is to take care of other items such as school uniforms and other attire for school such as Friday wear and underwear of the children. I do not think from the Petitioner’s evidence the Tipper Truck was also acquired during the subsistence of the marriage. It was Petitioner’s attorney who later in her evidence said the truck is for the Respondent and that they must have a share on it as well. The Respondent said he was not able to buy the truck so it was taken away from him by the owner relatives when the owner passed but once again he did not supply any evidence to that effect, he did not even call any of the relatives who collected the truck from him. As I have stated it was Petitioner’s Attorney who introduced the evidence in respect of the truck which was not pleaded and the Petitioner herself did not mention it in her evidence. The Attorney said the Respondent brought home use

truck which the Petitioner even told him not to buy because the truck has been involved in an accident before he went behind the Petitioner and purchased it. 17 If this assertion is true, why did the Petitioner failed to plead and lead evidence to that effect. The Attorney said that the Respondent even used the truck to cart some building materials for her so the truck is for him. Once again this court is unable to say whether the Petitioner was able to establish the fact the Truck belong to the Respondent. The Petitioner is the one who alleged that the Truck is for the Respondent so she bears the onus to establish same having failed to that, this court cannot hold that the truck belongs to the couple so the Petitioner be granted on share. As stated the Petitioner herself spoke about the proceeds to be given to her to look after the children and not a share or the truck. (SGD) JONATHAN D. NUNOO ESQ.

CIRCUIT JUDGE