Darko Vrs Darko [2023] GHADC 187 (7 June 2023)

IN THE DISTRICT COURT SITTING AT ASAMANKESE ON THE 7TH DAY OF JUNE, 2023, BEFORE HIS WORSHIP GEORGE DAVIS KWASI OFORI –

DISTRICT MAGISTRATE SUIT No:A4/1/23 CHARLOTTE OSEI DARKO ………… PETITIONER VRS.

SOLOMON DARKO ……….. RESPONDENT

JUDGEMENT CLAIM: In this petition, the petitioner is seeking the following reliefs, stated in her amended petition. a) A dissolution of the Ordinance marriage contracted between the parties on 31st December, 2005. b) Custody of the children of the marriage (Nora Okaibea Darko -12 years, Jemima Bedua Darko- 8 years and Jones Owusu Darko – 13 years). c) An order of monthly maintenance allowance for the upkeep of the children. d) Alimony of Gh¢19,000.00. e) Possession of a wooden tailoring shop at “Aunty Martha” with two sewing machines, one knitting machine and one design machine. f) Possession of one of four “fufu pounding machine shops, owned by the respondent. g) A fair share of a chamber and Hall building at I. C. G. C – Asamankese. h) Costs. SUMMARY OF PETITIONER’S It is her case that she got married to the respondent on 31st December, 2005, which marriage was a customary marriage, and which was converted to an ordinance marriage at the Asamankese District Court on 19th January, 2006. That during the pendency of the marriage, they gave birth to three (3) children, two (2) females and one male. That somewhere in 2016, she gave a loan of Gh¢1,000.00 to one Patrick Ankomah who is a mutual friend to them, but which matter led to the problems between them because when the respondent got wind of the financial assistance she gave to Patrick, he accused her of infidelity and refused

to eat her food or have sexual relations with her, and does not speak with her. That she finds the respondent’s behaviour unreasonable, hence this action, seeking the reliefs endorsed in her petition, because according to her, the properties contained therein were acquired during the pendency of their marriage. The petitioner called one witness to support her case. SUMMARY OF RESPONDENT'S CASE: The respondent consented to the petition for divorce but stated that there was a settlement at home, at which settlement the marriage was dissolved and he paid alimony of Gh¢2,000.00 to the petitioner and a stamping fee of Gh¢400.00 to the panel. That the respondent is not entitled to the reliefs because she did not contribute towards their acquisition and that he acquired them alone. The respondent also called one witness to support his case. ISSUES FOR DETERMINATION: From all the evidence before me, the issues that come up for determination are: a) Whether or not the marriage between the parties has broken down beyond reconciliation, b) Whether or not the petitioner was able to prove her contributions towards the properties she was claiming c) The party to have custody of the children.\ d) Whether or not the applicant is entitled to alimony. To be successful the onus is on the petitioner to lead sufficient evidence to prove that, on balance of probabilities, her case is more convincing

or reasonably probable than that of the respondent’s on material facts. See sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323), and the case of Ackah vrs Pergah Transport Ltd and anor [2010] SC GLR 728. With respect to the 1st issue, Section 1(2) of the Matrimonial Causes Act 1971 (Act 367) states that the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. Section 2(1) states amongs others that for a petitioner to show that the marriage has broken down beyond reconciliation, she must prove among others that the respondent has put up unreasonable behaviour towards her, making it intolerable for her to continue to live with him as his wife etc According to the petitioner, for about 3 years before this action, the respondent, who had accused her of infedility, has not been on speaking terms with her and does not eat her food. That she finds this behavour unreasonable and intolerable, and therefore she cannot marry him again. The respondent consented to the petition for divorce, which according to him has even been done at home, where their customary marriage was dissolved but that the petitioner had to resort to the Court because of the ordinance marriage. From the body language of the parties and the evidence before me, I am of the view that the marriage between the parties has broken down beyond

reconciliation, because I even referred them to ADR, but settlement failed. Accordingly, in accordance with Section 47 (1)(f) of the Courts (Amendment) Act 2002 (Act 620), Section 1(2) of The Matrimonial Cause Act 1971 (Act 367) and Order 32r1(a) of C. I 59, 2009 I dissolve the marriage that existed between the parties. I declare that each party is now free to marry another person of their choice. With respect to the 2nd issue, the petitioner stated during her cross-examination of the Respondent that although she was claiming her fair share of the chamber and hall house they built during the pendency of their marriage, she was the relinquishing that claim, having come to the realization that the house is ultimately the property of her children. But prayed the Court for a fair share of the other properties because she contributed towards their acquisition. According to the petitioner, they took up some cocoa farms and oil palm farms on caretaker basis, and that it was the proceeds of those farms that they used to acquire the shop, and machines ie the sewing knitting and design machines as well as the fufu pounding or milling machines. The respondent denied this, saying that the machines were bought by him, albeit during the pendency of their marriage. That while he was using his money to buy those machines, the petitioner was busy doling out her money to men, which he described

as the main cause or the genesis’s of their problems. Although the petitioner did not call any witness to corroborate her evidence on her contributions towards the acquisition of the properties, it would be unreasonable to suggest that she had no hand in the acquisition of any of the properties, having lived together from 2005 to 2022, and therefore entitled to an equitable share. Although the parties agreed that the respondent paid a sum of Gh¢2,000.00 to her when the marriage was dissolved at home, I am of the opinion that she is entitled to some equitable compensation when she has relinquished her interest in the house they built during the pendency of their marriage On the matter of custody of the children between them Order 32r1( C) of C. I 59, 2009 grants jurisdiction to the District Court to sit on matters involving custody of children. From the evidence before me, the children have been living with their father, (Respondent) since the couple separated. They have a place of abode in their own father’s house and to ensure continuity of care and control of the children, it is in the best interest of the children to continue to live with their father. However the Court grants access to the petitioner who is at will to visit them and find out how they are faring. Again, the Court orders the respondent to allow the children to spend vacations with their mother to continue to

bond with her The Court, in the exercise of its equitable jurisdiction, orders the respondent to settle on the petitioner a) One fufu pounding machine. b) One sewing machine. c) Rent a hall and chamber accommodation for the petitioner and pay one (1) d) years rent advance for her, for foregoing her fair share of their matrimonial home e) Pay an additional Gh¢3,000.00 as financial compensation to the Gh¢2,000.00 he has already paid to her, especially so when she has foregone her fair share of the house they built jointly No further order as to costs. (SGD) H/W GEORGE DAVIS KWASI OFORI (MR) (MAGISTRATE) 7/6/23 6