ESTHER BOATEY VRS. KOFI OBENG AMPOFO BOATENG

JUDGMENT

This is a wife’s petition for divorce on the ground that the marriage has broken down beyond reconciliation. The parties were married under the Marriage Ordinance Cap 127 at the District Magistrate Court Akim Oda and the marriage solemnized at Christ Apostolic Church New Town Akim Oda on 9th April 2016. From the processes filed the petitioner is a trader whilst the respondent is self- employed. There are no issues of the marriage. The petitioner citing unreasonable behaviour seeks the following reliefs:

“a) That the marriage celebrated between the Petitioner and the Respondent be dissolved since same has broken down beyond reconciliation.

b) An order for equal share of H/No. EG-252-2723 Akwamu-Adoagyire /Nsawam or judicial sale of the said jointly acquired building.

c) Eighty Thousand Ghana Cedis (GHC80,000.00) as alimony.”

The pith of the petitioner’s case is as follows: She got married to the respondent under the Marriage Ordinance Cap 127 at the District Magistrate Court Akim Oda and the marriage solemnized at the Christ Apostolic Church New Town Akim Oda on 9th April 2016. After the marriage they cohabited at her house at Jamaica Akim Oda till they completed their own building at Akwamu -Adoagyire/Nsawam and moved to stay in it. Thereafter they were blessed with a son who died three weeks after he was born. After the death of their child the respondent began to maltreat her by having sex with numerous women on their matrimonial bed. He even proved his adulterous act by showing her the recorded sex video he had with ladies on their matrimonial bed in her absence.

The respondent also often subjected her to severe beatings. He slapped her and drove her out of their room. She therefore had to pass the night at a friend’s house or guest house. According to the Petitioner she reported the respondent’s conduct to her father and family. Her father invited the respondent to come to Akim Oda to resolve the issue amicably, but the respondent insulted him. Continuing the petitioner indicated that anytime she prepared a meal for the respondent he did not eat it. Rather, he sent her to buy food for him in Accra. She said that as a result of his attitude she was nearly involved in an accident. She made the point that since they lost their son, she has not been able to conceive again and that when she suggested to the respondent to accompany her to the hospital, he refused to do that. She complained that the conduct of the respondent has affected her health and maintained that it is possible that she may not have a child if the marriage contracted between them is not dissolved.

The petitioner also asserted part-ownership of a three-bedroom self -contained house numbered EG -252-2723 located at Akwamu-Adoagyire /Nsawam on the basis that she contributed to the construction of that building. It was also her case that the marriage has broken down beyond reconciliation. Explaining why this was so she pointed out that they have been separated. That whilst she resides at Akim Oda the respondent resides at Akwamu -Adoagyire/ Nsawam. She added that the Respondent has over the years behaved in such a way that she cannot be reasonably expected to live with him. That his behaviour has caused her so much anxiety, distress and embarrassment. She gave the particulars of the respondent’s conduct as follows:

“ a) That the respondent has refused to have sexual intercourse with the petitioner for the past one year.

b) That the respondent informed her that he wants an open marriage which means he was at liberty to take concubines and she could also take any man of her choice.

c) The petitioner told her that he has 8 concubines and was not willing to leave any of them.

d) That the respondent warned her not to go back to the matrimonial home at Akwamu - Adoagyire/Nsawam.

e) That there has been a total breakdown of communication, the parties hardly talk. She is often disgraced by the respondent and they have virtually no knowledge about other’s personal lives.

f) That when she complains the respondent tells her that he will never divorce her and that he will maltreat her in such a way that she will cause the dissolution of the marriage.”

According to the Petitioner all efforts made by her family members to reconcile the parties have proved futile.

The respondent filed an answer and cross-petitioned for the following reliefs: “ a) The marriage between the parties be dissolved.

b) That the vehicle bearing registration No GG 1650 20 be declared joint marital property and shared as such.

c) That the petitioner be ordered to repay the GHC60,000.00 she took from respondent’s drawer without his consent

d) A declaration that H/No. EG -252-2723 Akwamu is the personal property of the respondent which was acquired before the marriage.

e) That the petitioner is ordered   to return to the respondent the documents covering H/No. EG -252-2723 Akwamu.

f)  Any other orders the Honourable Court deems fit.”

In his answer the respondent denied all the allegations made by the petitioner. In a nutshell his case was as follows: They resided together at a rented apartment at Adoagyiri before they got married. Before they got married in 2016 they lost their child five days after he was born. It was therefore after the death of their child in 2015 and in an effort to console the petitioner that they got married on 9th January 2016 and the petitioner given GHC 5,000 to renovate and open a provision store.

According to the Respondent after losing their child the petitioner refused to continue living in the rented apartment. He thus renovated her father’s chamber and hall at Akim Oda and moved the petitioner there. He indicated that the petitioner was not working until he opened a store for her.

In response to the petitioner’s allegations of maltreatment the respondent denied maltreating her or taking any woman to the matrimonial home. He maintained that any video watched by the petitioner was designed with the sole aim to improve their sex life. He denied slapping or beating the petitioner. He maintained that to his knowledge she never slept in a guest house or a friend’s house. According to the Respondent he has the utmost respect for the petitioner’s father and denied insulting him. He explained that the petitioner was asked to buy food from Accra when she did not feel like cooking or returned home late. In further answer to the petition he stated that he accompanied the petitioner to the hospital to see doctors about her inability to conceive and that it was the petitioner who refused to take the medication given to her. The respondent maintained that he acquired the house numbered EG -252-2723 before he got married to the Petitioner in 2016. The petitioner, he contended therefore did not contribute towards the construction of this house. He also indicated that he purchased vehicle with registration No. GG 1650 20 in July 2020 to be used for their benefit.

Lastly the respondent maintained that before the petitioner abandoned the matrimonial home she went through his belongings and without his consent removed an amount of GHC60,000.00 which she knew belonged to his business partner. It was his contention that even though the Petitioner admitted taking the money she has refused to return it. The respondent also admitted that the marriage has broken down beyond reconciliation.

In reply to the cross-petition of the respondent the petitioner indicated that they lost their child due to the treatment which the respondent meted out to her. She added that she was working before she met the respondent and that she purchased the vehicle in dispute from her resources.

It is my considered that the issues, which emerge for determination by the court are as follows:

1. Whether the marriage between the respondent and the petitioner has broken down beyond reconciliation.

2. Whether the Petitioner is entitled to Alimony or lump sum payment.

3. Whether the parties jointly acquired the house numbered EG -252-2723 located at Akwamu-Adoagyire /Nsawam and vehicle with Registration No. GG 1650 20.

4. Whether the respondent is entitled to recover an amount of GHC 60,000.00 from the Petitioner.

The law on the burden of proof was well stated by the Supreme Court in the case of MARTIN VRS BARCLAYS BANK (GH) LIMITED [2017–2018] 1 SCLRG 800. The Court held that the standard of proof in civil matters requires the person who assumed the burden of producing evidence to lead such evidence as to enable the Court to determine that he has established his case on a preponderance of probabilities.

Preponderance of probabilities is defined by Section 12(2) of the Evidence Act, 1975 (NRCD 323) as “that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.

The first issue, which must be resolved, is whether the marriage between the respondent and the petitioner has broken down beyond reconciliation. The Matrimonial Causes Act, 1971 (Act 367) requires that for the purpose of showing that the marriage has broken down beyond reconciliation the petitioner must satisfy the court of one or more of certain given facts.

Section 2 (3) of Act 367 provides that “Although the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied on all the evidence, that the marriage has broken down beyond reconciliation."

The petitioner is obliged to comply with Section 2 (1) of Act 367 which requires her to establish at least one of the grounds set out in that section. For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: -

“2 (1)(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

2(1)(b) that the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent; or

2(1)(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

2(1)(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 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 …

2(1)(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 2(1)(f) that the parties after diligent effort been unable to reconcile their differences”.

In order to succeed the parties must therefore bring themselves within at least one of the six grounds laid in Section 2 (1) of Act 367. Considering the nature of the petition and cross- petition Section 2 (1) (b) and (f) of the said Act must be proved. These sections read:

"2. (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."

(f) that the parties after diligent effort been unable to reconcile their differences”.

The respondent is not challenging the issue of divorce. The question, which arises, is whether the court in considering the evidence must accept the stand of the parties. The position of the law is that even though the parties want dissolution of the marriage the court must examine the evidence in order to find out whether there exist such differences between them to demand dissolution of the marriage. Section 2 (2) of Act 367 imposes on the court the duty to inquire, so far as is reasonable, into the facts alleged by the parties. The court can thus still refuse to grant a decree even when one or more of the facts set out in Section 2 (1) of Act 367 have been established. In the case of DANQUAH V DANQUAH (1979) GLR 371 the position of the law was echoed by Osei Hwere J as follows:

“In divorce proceedings the courts are under statutory and positive duty to inquire so far as it reasonably can into the charges and counter-charges alleged; and that duty cannot be performed by the court without the assistance of the parties and their solicitors”.

Again, in the case of MARIAM PARTEY V WILLIAM PARTEY (CIVIL APPEAL SUIT NO H1/183/2013 24 OCTOBER 2013) the Court of Appeal held that the court must examine the evidence in order to find out whether there exists such substantial differences between the parties to demand or impel dissolution of the marriage.

The petitioner set out to establish that the parties to the marriage have, after diligent effort, been unable to reconcile their differences as provided in Section 2 (1) (f) of the Act 367. As already indicated under Section 2(1) (f) of Act 367 the petitioner shall satisfy the court that the parties after diligent effort been unable to reconcile their differences. There is uncontradicted evidence to the effect that prior to the institution of this action the families of the parties met over their differences and that they failed to reconcile them. It is well established that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need to offer further evidence to establish that fact. See FORI V AYIREBI [1966] GLR 627. The petitioner therefore established to the satisfaction of the court that the parties have, after diligent effort, been unable to reconcile their differences. This is an element, which I consider as proof that the marriage has broken down beyond reconciliation. The dissolution of the marriage on this ground therefore succeeds. In my view no useful purpose would be served by a consideration of ground (b). On the evidence I am satisfied that the marriage between the petitioner and the respondent has broken down beyond reconciliation.

On the issue of Alimony the petitioner asked for GHC 80,000 as financial settlement. If one has to go to the law for guidance on this issue, it is to Section 20(1) of Act 367 that one must look. Section 20 (1) Act 367 gives the court the widest possible discretion with respect to financial provisions and property settlements. This was the holding of the court in the case of SANDRA AGYEPONG V EMMANUEL BRANTUO KYEREH (2011) 35 GMJ 134.

 Section 20 (1) of Act 367 is in the following terms:

‘(1) the court may order either party to the marriage to pay to the other party to the marriage such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof as part of financial provision as the court thinks just and equitable.

(2) Payments and conveyances under this section may be ordered to be made in gross or by instalment”

The case of RIBEIRO V RIBEIRO [1989-90] 2 GLR 109 laid down quite clearly that under section 20(1) of Act 367 the court has power to grant financial provision and that the basic consideration is the requirement for the court to examine the needs of the parties.

See also the case of OBENG V OBENG [2017-2020] 2 SCGLR 281.

It is important to state that the petitioner failed to prove the respondent’s means although the onus was on her to do this.

In order to succeed it was necessary for her to have led evidence in proof of what she claimed. As a guide there was no evidence from her to assist the court. On the evidence she thus failed to discharge the burden of proof, which lay on her on the issue. I am thus disabled from assessing any quantum based on the evidence. I am in the circumstances unable to award her anything.

This leads me to the issue of whether the parties jointly acquired the house numbered EG-252-2723 at Akwamu-Adoagyire /Nsawam and vehicle with registration No. GG 1650 20. The petitioner asserted part-ownership of the house numbered EG-252-2723 Akwamu- Adoagyire /Nsawam on the basis that she contributed towards the construction of that house. Her claim for relief was based on two grounds, namely, that she not only supervised the construction of this building but also contributed financially towards its construction. She recounted that prior to the marriage she was with the respondent in a rented chamber and hall when they both agreed to purchase a plot of their own and construct a house. According to her after they acquired the plot of land she hired labourers to clear it. She tendered a photograph of the land on which the house has been constructed as “Exhibit E”. She was emphatic that she was the one who supervised the entire building project from day one to its current state. It was her case therefore that notwithstanding the fact that the indenture (Exhibit “C”) is in the name of the respondent he was not the sole owner of the property in question.

The petitioner also claimed that she purchased the vehicle bearing registration No. GG 1650 20 with her own resources with the understanding that it would belong to her exclusively. She tendered documents pertaining to the vehicle (Exhibit “D”) to support this. On the contrary, the respondent maintained that he financed the construction of the house in contention from his resources and is therefore the sole owner thereof. His evidence on this property was that before he met the petitioner he had already acquired a plot of land at Akwamu Nsawam. He tendered in evidence a receipt (Exhibit “1”) in support of this. According to him he began construction of this house in 2012 and completed it in 2015. He buttressed this assertion with receipts (Exhibits “4” Series) and photographs of the house (Exhibit “5” series). The respondent also claimed to have purchased the vehicle in dispute to be used for their benefit.

The issue was raised as to whether the petitioner and the respondent were legally married before 2016. This is made clear, if one considers the questions which were put to the petitioner during cross-examination. Cross-examining the petitioner learned counsel for the respondent suggested the following:

“Q: So between October 2012 and 2016 you were not married.

A: In the year 2015 the family of the respondent came with some drinks to my parents to inform them that I am staying with the respondent and promised that the following year they would perform the marriage rites.

Q: Do you mean in the year 2015 it was the knocking rites?

A: Yes.

Q: Was this before or after you delivered your son?

A: The knocking was done after delivery of the child…..

Q: The day you are alleging you executed the indenture were you legally married to the respondent?

A: No when we bought this land we had cohabited for two years and both families know I was living with him.

Q: I am putting it to you that it was only in February 2015 that the knocking was done to introduce the respondent to the family. Nobody knew you.

A: No   because in the year 2014 the family knew me because by then I was pregnant.”

The evidence overwhelmingly shows that the respondent and the petitioner set up home and cohabited before getting married under the Marriage Ordinance in 2016. Although the customary marital rites had thus not been performed, the parties consented to live in the eyes of the world as man and wife. There was the acknowledgment of that state by their families and the outcome was the birth of a child for the respondent by the petitioner. The evidence of the respondent disclosed that he even renovated a chamber and hall for the petitioner in her father’s house at Akim Oda at a cost of GHC 8,000 for the petitioner. This I consider as proof that the families of the parties consented that they should live as man and wife. The decided cases indicate that consent may be implied from the conduct of the families of the man and the woman. See the case of YAOTEY V QUAYE [1961] GLR 1 & 2 GLR 573. In the case of ESSILFIE AND ANOTHER V QUARCOO [1992] 2 GLR 180 it was held that there were two forms of valid marriages known to our customary law: first, the ordinary case where a man sought the hand of the woman from her family and with their consent performed the necessary ceremonies of payment of drinks, customary fees and dowry; and secondly, where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so, and the parties actually lived as man and wife in the eyes of the whole world. In my view although the customary marital rites had not been performed before 2016, the parties lived in the eyes of the world as man and wife. On the evidence I am satisfied that before 2016 the relationship between the parties was that of husband and wife and I so find.

The current trend of judicial authorities discloses that property should be termed as “jointly acquired” when it has been shown from the evidence adduced during the trial to have been jointly acquired irrespective of whether or not there was direct pecuniary or substantial contribution from both spouses in the acquisition. In the case of PETER ADJEI V MARGARET ADJEI CIVIL APPEAL NO. J4/06/2021[2021] DLSC10156 the Supreme Court set out the parameters for determining which properties should be termed as “jointly acquired marital properties” and the criteria for the distribution of such properties. It held that it is not every property acquired single handedly by any of the spouses during the subsistence of the marriage that can be termed as “jointly acquired”. Rather it is property that has been shown from the evidence adduced during the trial to have been jointly acquired irrespective of whether or not there was direct pecuniary or substantial contribution from both spouses in the acquisition. Although the petitioner was unable to establish the extent of her financial contribution towards the construction of the house in dispute an examination of the respondent’s evidence extracted in cross-examination supports her case that she contributed to its construction. The respondent made the following important admission under cross-examination:

“Q: You were present when exhibit “B” was transcribed from the pen drive

A: I was present.

Q: The transcription is a true reflection of the audios and the videos on the pen drive.

A: Yes

Q: In one of the audios on exhibit B you stated that everything that you have gained on this earth it is because of the petitioner. Is that not so?

A: I said that but I have an explanation to that. By then the petitioner was angry and she thought I will give out the documents covering the house to another woman. I will not do that.

Q: For how long did you stay with the petitioner as a married couple?

A: three to four years

Q: for how long did you cohabit before getting married?

A: May be three years.”

Besides that, in the video (Exhibit “B”) which the respondent sent to the petitioner on Whatsapp he stated in no uncertain terms that the petitioner contributed to the construction of the property in dispute. This is what he said: “ Aah Esther you should know it is a joke, I know it was not nice to say but you should know it is a joke I will not give a document covering the house you have laboured for to a woman”.

The evidence of the respondent thus confirmed the petitioner’s story on this issue. Such confirmatory evidence from the respondent in support of the petitioner’s version renders the petitioner’s’ version preferable to that of the respondent. Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, then that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view. See the case of ASANTE V BOGYABI [1966] G.L.R. 232. Applying this principle to this case there is no reason for not preferring the corroborated evidence in favour of the petitioner on this issue. On the strength of the respondent’s admission I find that there is ample basis to hold that the petitioner contributed to the acquisition of the house numbered EG-252-2723 Akwamu-Adoagyire /Nsawam.

Accordingly in my judgment the petitioner is entitled to a share in this property which was acquired during the subsistence of the marriage. The petitioner therefore succeeds in her claim that she is a joint owner of the House numbered EG-252-2723 Akwamu- Adoagyire /Nsawam.

I observe also that the documents (Exhibit “D” Series ) pertaining to the vehicle with registration No GG 1650 are in the name of the petitioner. This however should not constitute a bar to the respondent’s claim. The evidence discloses that this vehicle was also acquired during the subsistence of the marriage. In the case of ARTHUR (No1) v ARTHUR (No 1) [2013-2014] SCGLR 543 the court held that 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. In the words of Dr Date-Bah JSC @ page 565

“ ..It should also be emphasized that in the light of the Supreme court in Mensah and Mensah 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”.

Applying the principles outlined above I therefore hold that the parties jointly acquired the House numbered EG-252-2723 Akwamu-Adoagyire /Nsawam and Vehicle with registration No. GG 1650 20.

The final issue, which must be determined, is whether the respondent is entitled to recover an amount of the GHC 60,000.00 from the petitioner. The respondent prayed the court to order the petitioner to repay an amount of the GHC 60,000.00 which according to him she took from his drawer without his consent. As the petitioner denied this allegation the respondent clearly bore the evidential burden of establishing on the balance of probabilities that the petitioner took an amount of GHC 60,000.00 from his drawer without his consent. It is the respondent who made the assertion therefore he bore the burden of producing evidence in proof of this assertion. On the allocation of the burden of proof Section 17 of the Evidence Act 1975 (NRCD 323) provides as follows:

Section 17

“(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.

(2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

All the court has is the bare allegation of the respondent unsupported in any way even though denied by the petitioner. It is sufficiently clear, in the light of Section 17(1) of NRCD 323 that the respondent failed to discharge this particular burden of proof which lay on him. The claim of the Respondent is consequently dismissed as unproved. I am unable to make the declaration that the House numbered EG -252-2723 Akwamu is the personal property of the respondent. Relief c of the petition and reliefs c and d of the cross- petition are dismissed. In the result I make the following orders:

1. The Ordinance marriage contracted between the parties at the District Magistrate Court Akim Oda and solemnized at Christ Apostolic Church New Town Akim Oda on 9th of April 2016 is dissolved.

2.  I make an order for judicial sale of H/No. EG-252-2723 Akwamu Adoagyire

/Nsawam. Half of the proceeds realized from the sale should be paid to the Petitioner as joint owner.

3.  I order that the vehicle bearing registration No GG 1650 20 be sold and the proceeds distributed equally between the parties.

4.  The petitioner is ordered to deposit the documents covering H/No. EG -252-2723 Akwamu Adoagyire /Nsawam with the registrar of this court within 7 days of this date.

5.  Parties are to bear their own costs of litigation.

 SGD

H/L OLIVIA OBENG OWUSU (MRS)

JUSTICE OF THE HIGH COURT

PARTIES:

Petitioner present Respondent present

Richard Offin for the Petitioner present.

AUTHORITIES:

1. DANQUAH V DANQUAH (1979) GLR 371

2. MARIAM PARTEY V WILLIAM PARTEY (CIVIL APPEAL SUIT NO. H1/183/2013 24 OCTOBER 2013 )

3. SANDRA AGYEPONG V EMMANUEL BRANTUO KYEREH (2011) 35 GMJ134.

4. RIBEIRO V RIBEIRO [1989-90] 2 GLR 109,

5. OBENG V OBENG [2017-2020] 2 SCGLR 285

6. YAOTEY V QUAYE [1961] GLR 1 & 2 GLR 573.

7. ESSILFIE AND ANOTHER V QUARCOO [1992] 2 GLR 180

8. PETER ADJEI V MARGARET ADJEI CIVIL APPEAL NO. J4/06/2021[2021] DLSC10156

9. ARTHUR (No1) v ARTHUR (No 1) [2013-2014] SCGLR 543

10. MARTIN VRS BARCLAYS BANK (GH) LIMITED [2017–2018] 1 SCLRG 800.

11. FORI V AYIREBI [1966] GLR 627.

12. ASANTE V BOGYABI [1966] G.L.R. 232.

13. THE MATRIMONIAL CAUSES ACT,1971 (ACT 367)

14. THE EVIDENCE ACT 1975, ( NRCD 323)

15. THE 1992 CONSTITUTION