THERESAH OWUSU AKO VRS SAMUEL OWUSU AKO

JUDGMENT

The Petitioner, in a further amended Petition dated 26th October 2023 pursuant to an order of the Court dated 25th October 2023, prayed for the dissolution of their marriage averring that, the marriage had broken down beyond reconciliation as the Respondent had behaved in such a way that, she could not reasonably be expected to live with him and prayed for the following reliefs;

i. That the marriage be dissolved.

ii. That the Respondent be ordered to make to the Petitioner such maintenance pending suit and thereafter such periodic payment as may be just.

iii. That the Respondent be ordered to pay in the alternative, a lump sum of GH¢100,000.00.

iv. That half of the Matrimonial home (House No.KN 88/4 Kasoa) be settled on the Petitioner.

v. That half of the Farmland and farms including a Piggery and Poultry farm located at Asuboi in the Eastern Region be settled on the Petitioner.

vi. The Respondent to bear the cost of this suit.

 

BRIEF FACTS

The brief facts of the case as gleaned from the further amended Petition are that, the Petitioner then a Spinster and the Respondent, a Divorcee married customarily on 4th May 1995 and on the same day lawfully got married under the Ordinance at the Registrar General’s Department in Accra. After the celebration of the marriage the parties cohabited at the Flagstaff House, Block D, Accra and then later relocated to House No KN 88/4 Kasoa, which served as their matrimonial home after the marriage.

The Petitioner, at the time of filing the petition was a Journalist, whereas the Respondent is presently a Pensioner. The Parties are both Ghanaians and domiciled in Accra. There are no issues of the marriage even though, the Respondent has two children from two previous marriages namely Stanley Ako and Solomon Ako. There have not been any previous proceedings in respect of this marriage in any Court with reference to the marriage by or on behalf of the Petitioner or the Respondent.

The Respondent entered appearance through his Solicitor and filed an Answer to the Petition. Subsequently, the Respondent filed an amended answer and cross petition on 8th April 2019 pursuant to leave granted by the Court. It is worth mentioning that, the Respondent did not file any amended Answer to the further amended Petition filed by the Petitioner on the 26th of October 2023.

The Respondent in his amended Answer denied some material particulars contained in the amended Petition and particularly averred in his cross petition that, the Petitioner has also behaved in a manner that the Respondent cannot reasonably be expected to continue to live with her as a wife and the Petitioner has refused or neglected to perform any wifely duties at home and the parties have not lived together as man and wife for a continuous period of 7 years prior to the presentation of this petition.

In a Reply to the Answer and an Answer to the Cross -Petition on the filed on the 24th of August 2018, the Petitioner denied some material particulars of the Respondent’s Answer and cross petition and particularly maintained that, the marriage should be dissolved because the Petitioner finds it intolerable to live with the Respondent because of his unreasonable behavior and adulterous ways.

At the end of the trial, both Counsel were directed to file their respective written addresses which they both did wherein they espoused reasons for the successes of their cases for their respective clients. The Court commends both Counsel for the industry put in their written addresses which addresses were duly considered by the Court.

ISSUES

The following issues were set down to be determined by the Court at the Case Management Conference.

1.     Whether or not the marriage has broken down beyond reconciliation warranting its dissolution.

2.     Whether or not the Petitioner is entitled to financial settlement.

3.       Whether or not the Petitioner is entitled to property settlement.

4.     Whether or not the Respondent is entitled to his cross petition.

Issues 1, 2 and 3 will be analyzed together.

The Petitioner has averred that, the marriage has broken down beyond reconciliation as the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent and the Respondent’s behaviour has caused the Petitioner much anxiety and distress, so the marriage should be dissolved. It is worth mentioning that, since this marriage was celebrated under the Marriage Ordinance, the law regulating its dissolution is the Matrimonial Causes Act of 1971, Act 367.

By Section 1 (2) of the Matrimonial Causes Act (Act 367) supra, the sole ground upon which an order for dissolution of a marriage can be made, is that, the marriage has broken down beyond reconciliation. Section 2 (1) of the said Act however, requires that,

(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:

By proving one or more of the facts set out in the said section, as follows:

(a) That the Respondent has committed adultery and that by reason of the adultery, the Petitioner finds it intolerable to live with the Respondent;

(b) That the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent;

(c) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;

(d) that the parties to the marriage have not lived as husband 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 the 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 despite the refusal;

(e) That the parties to the marriage have not lived as husband 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 general position of the law is that, a Court ought to inquire so far as is reasonable, into the facts alleged by the Petitioner and Respondent, to satisfy itself on the evidence that, the marriage between the parties has indeed broken down beyond reconciliation. This requirement is provided for by Sections 2(2) and 2 (3) of Act 367, as follows;

“(2) On a Petition for divorce the Court shall inquire, so far as is reasonable, into the facts alleged by the Petitioner and the Respondent.

(2)   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 Respondent who is in the same position as the Petitioner, in relation to his Cross-Petition, similarly has to prove the facts stated in Section 2 (1), of Act 367 supra.

It is in line with requirements of the law that, the trial was conducted by the Court to ascertain whether or not the marriage has indeed broken down as alleged by the Petitioner in her petition and the Respondent in his cross petition and so should be dissolved.

Burden Of Proof

It is trite knowledge that, he who asserts must prove. In the case of Okudzeto Ablakwa (N0.2) V Attorney General & Obetseibi –Lamptey (N0.2) 2 SCGLR 845, the Supreme Court in dealing with the burden of proof in civil trials, held at page 867 as follows; “He who asserts, assumes the onus of proof. The effect of that principle is the same a what has been codified in the Evidence Act, 1975 (NRCD 323) Section 17 (a) .What this rule literally means is that, if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted…… stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”.

In the case of Ababio V Akwasi [1994-1995] 2 GBR 774, the Court held that; “The general position of the law is that, it is the duty of the Plaintiff to prove what he alleges, in other words, it is the party who raises in his pleadings, an issue essential to the success of his case, who assumes the burden of proving it”. This has been given effect to by relevant Sections of the Evidence Act 1975 (NRCD 323).

Section 10 (1) of the Evidence Act supra provides;

“For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or Court”.

Section 11(1) of the Evidence Act NRCD 323 provides that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. In Bisi V Tabiri [1987-88] 1 GLR 360, it was held that “The standard of proof required of a Plaintiff in a civil action, was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”.

It is also trite learning that, evidence is what the Court uses in resolving Issues of facts arising from a case and a pleading of averment in proof of which no evidence is offered, virtually serves no useful purpose in a case.

The Petitioner alleged that, the Respondent had behaved in an unreasonable behavior towards her and also had committed adultery which makes it intolerable to live with the Respondent any longer.

On the Petitioner’s claim that the Respondent has behaved in an unreasonable way towards her and had committed adultery, the onus lies on the Petitioner to lead credible evidence to establish her claims that, the Respondent had behaved unreasonable towards her and had committed adultery. To this end, the Petitioner is to lead evidence on her assertion so that, on the preponderance of probabilities, any reasonable person will believe that, what she says is more probable than not.

At the trial, the Petitioner gave evidence via her witness statement, which she relied on together with her exhibits A-D as her evidence in chief. The Petitioner testified that, the Respondent had committed adultery and was living in concubinage with one Claribel Asher whom the Respondent calls his lucky woman.

Adultery has been defined in Section 43 of Act 367 supra as; “the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse”.

Per Section 2 (1) (a) of Act 367 supra, one of the grounds that the Petitioner must prove to show that she cannot live with the Respondent is that the Respondent has committed adultery.

In Adjetey and another V Adjetey [1973] 1 GLR @ pages 216-221, the Court stated that; “Adultery must be proved to the satisfaction of the Court and even though the evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of certainty…”

In the evidence of the Petitioner to prove her claim that the Respondent had committed adultery, she testified that, the Respondent had abandoned the matrimonial home and was staying with his concubine who he has confessed to and claims having a child with.

During cross examination of the Petitioner by Counsel for the Respondent on the evidence led by the Petitioner regarding the issue of adultery, this is what transpired.

Q. And I am putting it to you that, the Respondent is not in any relationship with one Claribel Asher?

A. He is. And the explanation is when I went to DOVVSSU Headquarters to report him, he went and when I went there for the response I was told that the lady at the centre of our marriage was not only his girlfriend but his everything and that when he met her all his things are prospering and that everything he touches prospers.

Q.  As a senior Journalist you will agree with me that, what you have just said that he told the Police that, since he met her everything is okay with him is a report that has been relayed to you?

A.  That was the report given me when I made the complaint.

Q. So this information that you got is the basis of your accusation of adultery against the Respondent?

A.  No.

Q. But you will agree with me that, that piece of information is very crucial to your allegation of adultery, not so.

A. Yes, but there are other instances, so many of them.

Q. You have never seen the Respondent in a compromising position with the said Claribel Asher, have you?

A. No.

As direct evidence of adultery is rare, in nearly every case, adultery is inferred from circumstances which by fair and necessary inference will lead to that conclusion. Adultery may also be proved through other means such as the birth of a child, voluntary confession, caught in the act, and veneral disease.

The Petitioner on whom lies the burden of proof was to adduce evidence on the preponderance of probabilities on her claim of adultery on the part of the Respondent, but this she failed to do except to rely on the information given her by the Domestic Violence and Victim Support Unit of the Ghana Police (DOVVSSU) and the mere repetition of her averments in the witness box with no proof. She did not provide the Court with any evidence of the claim of adultery to merit a ruling in her favour.

In the case of MAJOLAGBE VRS LARBI 1959 GLR @ 190. Ollenu JSC as he then was stated that;

“Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way. Example by producing documents, description of thing, reference to the facts, instances or circumstances and if 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”.

Also, the Supreme Court in the case of T.K SERBEH AND CO LTD V MENSAH [2005-2006] SC GLR 341 also crystallized proof in law as follows;

“For however credible a witness may be, his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof”.

This assertion of adultery was denied by the Respondent in his evidence and so the burden of proof laid squarely on the Petitioner to establish the claim of adultery against the Respondent, but this she failed to do per the evidence on record. It is therefore not surprising to the Court that the Petitioner’s Counsel admitted in his written address that adultery would not be a good ground to seek the dissolution of the parties’ marriage.

In the case of Adjetey and another v Adjetey supra, the circumstantial evidence on adultery was strong and weighty, and this led the Court to conclude that, adultery had been committed.

In this instant case, I am unable to find that the Respondent had committed adultery by the Petitioner’s mere assertion of the Respondent’s purported movement to go and live with the said Claribel Asher without any proof. On that see the cases of Zabrama V Sebgedzi [1991] 2 GLR 221 @ 223 and Majolagbe V Larbi (1959) GLR @190.

I therefore dismiss this claim of adultery made by the Petitioner against the Respondent as there was no evidence to support her claim of adultery.

Having dismissed the Petitioner’s claim of adultery against the Respondent as unproven, I shall consider the second ground claimed by the Petitioner, that the Respondent had behaved in an unreasonable manner towards her, necessitating a dissolution of the marriage. Again, the onus lies on the Petitioner to prove this assertion of unreasonable behavior on the part of the Respondent.

Per the pleadings and her evidence before the Court, the Petitioner testified that, although the Petitioner wanted to have children of her own, the Respondent who had been diagnosed with low sperm count refused and or failed to receive medical treatment for his medical condition, not caring whether the parties had children or not, and often taunted the Petitioner that he had children of his own from his previous marriage and was satisfied with that.

The Petitioner in establishing the unreasonable behavior of the Respondent, testified that, the Respondent had stopped communicating with her and also stopped giving her housekeeping money for years as well as refusing to eat food prepared by her, she further testified that the Respondent had refused to share the matrimonial bed with her whiles he satisfied his sexual desires with his concubine, and the Respondent is a man of violent behavior who picks up quarrels with her any time and assaults her both verbally and physically without any provocation.

She testified further that, the Respondent had assaulted her on a number of occasions to which she reported the assault to the DOVVSSU at the Police Headquarters.

It is important to mention at this juncture what the apex Court has said regarding what would amount to unreasonable behavior.

Unreasonable behavior has been defined in English law as “conduct that gives rise to injury to life, limb, or health or conduct that gives rise to reasonable apprehension of such danger”. What amounts to unreasonable behaviour, has been held to depend on the circumstances of each case.

It must not be conduct which can be termed as trivial, or such conduct as is occasioned by the wear and tear of marriage. The conduct must be grave and weighty, such as to merit a finding that the Petitioner cannot be reasonably expected to live with the Respondent. See MENSAH V. MENSAH [1972] 2 GLR, 198 at 204.

In the case of Knudsen v Knudsen [1976]1 GLR @204 it was held that; “The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act, if it is of sufficient gravity, or of a persistent course of conduct or of a series of acts of differing kinds, none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so”.

The Petitioner has testified that she had always wanted to have children but the Respondent refused to seek medical treatment for his low sperm count and that the Respondent refused or failed to receive medical treatment for that. She testified that, his obstinate refusal to seek medical attention has rendered the Petitioner childless. Both parties testified that, at a point in their marriage they had subjected themselves to IVF treatment at the Pro Vita Hospital, but that attempt at getting a child was fruitless and the Respondent had attributed their childlessness to the Petitioner’s problem with fibroid that she suffered from.

This Court per the evidence adduced, finds as a fact that both parties had problems with their reproductive health and that had adverse effect on their child bearing and their inability to have children cannot be laid entirely on the Respondent.

I find that from the evidence also that, the behaviors of the Respondent complained of ranged over a wide variety of acts, over a persistent course and were series of acts of differing kinds as testified to by the Petitioner in her evidence which could establish unreasonableness on the part of the Respondent. The behaviors complained of by the Petitioner could be said to be beyond the ordinary wear and tear of marriage. The cumulative effect of all these differing acts put together leads this Court to make a finding that these acts are acts that the Petitioner cannot reasonably be expected to continue living with the Respondent as his wife.

Being a cross Petitioner, the onus is also on the Respondent to prove his assertion that the marriage has broken down and should be dissolved. The Respondent in his cross petition has said that, the parties have not lived together as husband and wife for a continuous period of five years.

The fact that the parties have not lived together as man and wife came to the fore during cross examination of the Petitioner by Counsel for the Respondent.

Below is what transpired during cross examination.

Q.       You and the Respondent have not lived as husband and wife since 2017, is that correct?

A.       Yes.

Q.       And that is over five years now, isn’t that true?

A.       Yes.

 

Upon this admission by the Petitioner that the parties have not lived together as man and wife since 2017,during cross examination, It is therefore not in doubt that the parties have not lived together as man and wife for a continuous period of over five years now thus satisfying Section 2(1) e of Act 367 supra.

Section 2 (1) (e) provides one of the facts that must be proved to show the breakdown of the marriage, and that is where 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.

The parties not having lived together for this long, implies the total withdrawal of marital obligations, such as they not being physically present in the lives of each other, denying each other the necessary consortium in marriage even though they were a married couple.

From the evidence adduced, the parties, after much efforts to help them patch up their differences have been unsuccessful.

Section 2 1 (f) of Act 367 supra provides one of the grounds for the dissolution of marriage; “that the parties to the marriage, after much diligent efforts, have been unable to reconcile their differences”.

I therefore find on these facts, the unreasonable behaviour of the Respondent towards the Petitioner, the fact that, the parties have not lived together as man and wife for about 7 years and the unsuccessful attempts to reconcile them, that the marriage between the parties has indeed broken down beyond reconciliation, warranting its dissolution. Accordingly, I decree that the Ordinance marriage celebrated between the parties on 4th May 1995 with certificate number RGM.465/95 and license number AMA.1236/95 BE and is hereby dissolved, and the marriage Certificate is cancelled.

The parties are to furnish the Registrar of marriages in the area where the marriage was contracted with the divorce certificate to amend the records accordingly.

Having dissolved the Ordinance marriage of the parties, I shall now turn my attention to consider the ancillary reliefs being sought by the parties.

The Petitioner in her relief “ii” is seeking an order for the Respondent to make to the Petitioner such periodic maintenance pending suit and thereafter such periodic payments as may be just. After a critical perusal of the entire Docket, the Court notes that, the Petitioner did not file any motion for maintenance pending suit during the pendency of the suit, even though, the parties filed their respective affidavit of means. There was no order made by the previous Judge for maintenance of the Petitioner pending the determination of the suit.

In the first place, the order for maintenance pending suit is moot now since the case has come to an end, and if no such application was made then when the case was pending, in the view of the Court, the order for maintenance pending suit cannot be made now. Relief “ii” is dismissed.

The Petitioner added that, the Respondent be ordered thereafter to make to the Petitioner such periodic payments for maintenance as may be just. One wonders what specifically this relief is about, since once the marriage has been dissolved, and there are no longer any ties between the parties, the Court cannot order the Respondent to make periodic payments as maintenance to the Petitioner as the Court does not find this to be just since it cannot make orders that the Respondent should maintain the Petitioner when the parties are no longer married. The second part of the Petitioner’s relief “ii” is dismissed.

The Petitioner in her reliefs “iii” is asking the Court to order the Respondent to pay in the alternative of her relief “ii”, a lump sum of GH¢100, 000.00

Section 20 of Act 367 supra gives this Court the jurisdiction to make an award of financial provision or the payment of lump sum to a spouse upon the dissolution of the marriage.

Section 20 ss (1) and (2) of Act 367 supra provides that;

(1)  “the Court may order either party to the marriage to pay to the other party, such sum or 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 instalments.

In the case of Beckley v Beckley and another, 1974 (1) GLR 393-403 the Court, in deciding the amount which the Respondent ought to maintain the Petitioner with, held that; “the Court must look at the circumstances of the Respondent”.

In line with the Law, therefore this Court can make such an order in respect of the payment of money to a spouse upon the dissolution of a marriage as it thinks just and equitable, but as stated above, the Court will have to take into consideration the circumstances of the Respondent.

The Petitioner in her evidence testified that, the Respondent is presently a Pensioner. Per the Petitioner’s evidence, the Respondent stopped giving the Petitioner housekeeping money years ago and the Respondent stopped eating food prepared by the Petitioner, obviously because the Respondent was not giving her house keeping money. In his evidence in chief, the Respondent testified that, he was unemployed and was on retirement.

The general provision of the law is that, the Court is to make an order for a party to make financial provision for the spouse, but the Court will do that, when it considers it just and equitable to do so, and in doing so, as in this case, the Court will consider the circumstances of the Parties especially the Respondent.

To this end, the Court has taken due cognizance of the affidavit of means filed by the parties wherein the Petitioner said she earns a net income of GH¢1703.45 and the Respondent also per his affidavit of means earns a net pension of GH¢2, 233.81 as a Retired Police Chief Inspector as of 2020. This is the only evidence the parties provided regarding their earnings which shows what the Respondent takes as income from his pension per month as a Retiree.

It is worthy to mention that, the financial provision is not gender restrictive. The grant of any financial provision is discretionary and is not resorted to arbitrarily or capriciously. The discretion is borne out of Act 367 supra. In determining whether or not to make any financial settlement to a party under Section 20 (1) of Act 367, the Court is enjoined to be just and equitable. Also, In determining what is just and equitable, the Court is to have due regard to all the circumstances of the case such as, the parties income, future earning capacities, the parties property and resources, their standard of living, ages of the parties and children if any, duration of the marriage, and contribution of each of the parties made during the subsistence of the marriage. See the case of Obeng V Obeng [2016]99 GMJ @ 183 CA.

These are some of the factors which are taken into consideration in determining what is just and equitable in a request for the payment of lump sum settlement upon the dissolution of a marriage.

I have duly considered the employment statuses of both Parties, who are both retirees now, the peculiar circumstances of the case, that is to say, the Petitioner who has had to stay in the marriage without having to bear any child of her own, the long duration of the marriage, the parties having being married for about 22 years and also considered the fact that, these are not young couples as well as the evidence placed before the Court regarding their childlessness.

In this regard, this Court not having been provided any evidence that the Respondent is in any gainful employment now and so is in a position to make financial settlement to the Petitioner, I am unable to order that, the Respondent makes a financial settlement of GH¢100,000.00 to the Petitioner. However, for these many years that the Petitioner was married to the Respondent, I shall order that the Respondent pays the Petitioner an amount of Thirty Thousand Ghana Cedis (GH¢30, 000.00) as financial settlement.

Also, the Petitioner in her relief IV, is asking that, a half share of the matrimonial home (House number KN 88/4, Kasoa) be settled on her.

Before determining whether the Petitioner is entitled to this relief, I will refer to what the law says on property settlement upon the dissolution of a marriage?

Section 20 (1) of Act 367 supra provides that, “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof, or as part of financial provision that the Court thinks just and equitable”.

Section 21 also provides that; “When a decree of divorce or nullity is granted, if the Court is satisfied that, either party to the marriage holds title to the moveable or immovable property, part or all of which rightfully belongs to the other, the court shall order transfer or conveyance of the interest to the party entitled to it on the terms that the court thinks just and equitable”.

From a combined reading of these provisions of the law, it is deducible that, upon the dissolution of a marriage, the Court may either order in the settlement of property rights of spouses, the payment of a sum of money or the conveyance of a property as settlement of property rights, or if a Court is satisfied that, a party holds title to the movable or immovable property, shall order transfer or conveyance of the interest to the party entitled to it on terms that the Court thinks just and equitable.

In a petition for divorce, a Court in exercising its jurisdiction derived from Statute, may make orders for a spouse to convey any property that is proven to be a jointly acquired property during the pendency of the marriage, and this will be ordered to be shared by the equity of the case till the contrary is proven. Jointly acquired properties will be, all properties acquired by the parties during the subsistence of the marriage and both parties should be able to enjoy what they have acquired jointly and benefit equally from what they toiled to acquire.

See cases such as; Gilbert Anyetei v Susan Anyetei CAN/J4/67/2021 dated 2nd March 2023, Kofi Amofa Kusi V Afia Amankwah Adarkwah [2022] 178 GMJ @ 53, and Peter Adjei and Margaret Adjei CAN J4/06/2021dated 21st April 2021.

The Petitioner in her evidence testified that, when the Parties got married on 4th May 1995, the Kasoa residence had not been built and that an Indenture executed was done in favour of the Respondent alone. The Petitioner further testified that, there was no building on the land but it was only the foundation for the project that had been dug and the Respondent asked her to take care of the home with her income while the Respondent put up the building with his own income which he did.

The Petitioner also testified that, when they got married on 4th May 1995, the Kasoa Residence had not been built but the Respondent told her that, he had a plot of land at Kasoa and the plot of land was fully paid for and an Indenture executed in favour of the Respondent after the parties got married.

The Petitioner attached to her witness statement, Exhibit “D” which is an Indenture made between Nai Odupon Awushie Tetteh II, Head of the Anona Family of Odupon Ofakor in the Awutu District In the Central Region and Samuel Owusu Ako the Respondent herein.

The Petitioner further testified that, there was no building on the land but the foundation had been dug and the Petitioner’s evidence is that, she took care of the home by using her income to prepare meals and other things in the home, such as painting the barracks apartment every year, bought different sets of curtains, carpet and later a set of furniture.

The Petitioner further testified that, she was cooking for the team of workers constructing the house because there was no food at the site and so she had to cook at Flagstaff house where they were residing at the time and the Respondent carried it to them at Kasoa. And also gave the Respondent Three Hundred dollars ($300) to keep for her.

The Respondent has also testified that, he has only one house which is the said House Number 88/4 Kasoa, and that house was acquired before the marriage with the Petitioner, and that the Petitioner has no share in same.

Neither of the parties led credible evidence to show to the Court that, the house in question was acquired jointly by them and was intended by them to be used as their matrimonial home.

An indenture furnished the Court by the Petitioner, Exhibit “D”, is dated 25th April 1996 even though it was made on the 18th of April 1996 showing that, the Indenture was prepared in 1996, giving credence to the Petitioner’s testimony that the plot of land was fully paid for and an Indenture executed in favour of the Respondent after the parties got married.

The Respondent testified that, he has only one house which said house was acquired before marriage to the Petitioner and he bought the land, completed the building before marrying the Petitioner. He again testified that, he built the house and completed it in 1993.

The Court notes that, the Petitioner did not produce any evidence to show to the Court how the said house was jointly acquired by the parties during the pendency of the marriage. She did not also call any witness to corroborate her evidence in respect of the Joint acquisition of the Parties towards the matrimonial home or how the house was put up during the pendency of the marriage.

The Respondent called RW 2 Abdul Wasimu Musah to testify on his behalf. RW2 did not seem to know much about the acquisition of the House in question either, to tell the Court whether it was jointly acquired by the parties or not. During cross examination of RW2 by Counsel for the Petitioner, RW2 said that, all he knew about the house was that, there was a rainstorm one day and the Respondent engaged his services to work on the house which he only did from lintel level to the gable and later a Carpenter came to roof the house. RW2 told the Court that, throughout his one week work on the house, he never met the Petitioner.

It is apposite to reiterate the fact that, the Courts will make such a conveyance of immovable property to a spouse, if the Court is satisfied that, either party to the marriage, holds title to the property, either part or all of which belongs to the party. This is what may be conveyed to a spouse in satisfaction of property settlement, per Sections 20 and 21 of Act 367 supra.

The question to ask is, was the property, House Number KN 88/4 Kasoa jointly acquired by the parties during the pendency of the marriage meriting a half share to the Petitioner?

The Respondent testified that, the land was acquired in 1990 before he married the Petitioner in 1995. Per his Exhibit 2, the Indenture was dated 18th April 1996. No evidence was given by the Respondent to prove when he started and completed the house, except his terse statement during cross examination by Counsel for the Petitioner that he completed the house before he married the Petitioner.

The Petitioner who said she was cooking for the workers on site during the construction of the house did not call witnesses to corroborate her testimony. None of the parties called any witness be it the Contractor or other artisans who put up the house to testify on their behalves regarding the construction of the house and its completion thereof. The Indenture bears the name of the Respondent alone who purportedly bought the land in 1990 when the Petitioner was not in the picture.

It is the Petitioner who has come to Court and is asking the Court to give her a half share of the matrimonial home who has the burden to discharge to prove that the property was jointly acquired by the parties hence she deserves a half share.

Since no cogent evidence was led by the Petitioner as to how the house was jointly acquired by the parties and the contributions the Petitioner made towards its acquisition, in the absence of any evidence to prove the contribution the Petitioner made in the acquisition of the matrimonial home described as house number KN 88/4 Kasoa, I am unable to make an order for a half share of the property to the Petitioner. See Quartson V Quartson [2012] 2 SCGLR 1077 @ 1080 Where it was stated that;

“… the Supreme Court’s previous decision in Mensah v Mensah is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled…the decision as we see it should be applied on a case by case basis, with a view to achieving equality in the sharing of marital property”.

The Petitioner’s relief “1V” fails in the circumstances.

 

The Petitioner in her relief “V” is asking that half of the Farmland and farms including a piggery and poultry farm at Asuboi in the Eastern Region be settled on her. The Court notes that in the Petitioner’s amended petition nowhere did she make mention of any fact that, during the subsistence of the marriage the parties jointly acquired farmland which includes a piggery and the poultry farm to merit a half share in the farmland upon the dissolution of the marriage. In fact, the Petitioner first mentioned the piggery/poultry farm in paragraph 23 of her witness statement under the heading Wawase project-Piggery/Poultry.

The Petitioner averred that, the Respondent bought the land at Wawase before he went on a Peace keeping mission in 2005 but the Court is not told when exactly the land was bought. From the evidence adduced, the Petitioner did not even know where the farm was as the Respondent never took her there, except to say that, every project on the land, the piggery, poultry and the farm house were all acquired in the course of the marriage and so it is only fair that same be shared upon dissolution of the marriage.

From the evidence adduced, there were some discrepancies in the testimonies given by the Respondent and his witness RW1 Daniella Ako. Whiles the Respondent testified that, the project was his, Rw1 also testified that, the piggery belonged to her and as at now, there were no pigs as the pigs had all died.

The Respondent and RW1 did not provide any evidence as to the existence or non-existence of any piggery/poultry farm and if the Petitioner is claiming a half share in a piggery/poultry farm purportedly acquired during the subsistence of the marriage, the onus was on her to prove to the Court that, the Piggery/Poultry farm at Wawase were acquired jointly by the two parties for which the Court will make a determination that she is entitled to an equitable share.

In the Supreme court case of Peter Adjei and Margaret Adjei [2021] DLSC10156, it was held that; “a spouse claiming an interest in a property acquired either in part or in whole during the subsistence of a marriage must prove that he or she contributed in some measure towards the acquisition of the property”.

In the absence of any evidence from the Petitioner that the piggery/poultry project on the farmland were jointly acquired by the parties and that those projects are actually in existence, the Court is unable to make an order granting the Petitioner a half share of the piggery/poultry project and the farmland. The Petitioner’s relief “V” is dismissed.

In respect of the Petitioner’s relief “VI” asking that the Respondent should bear the cost of this suit, cost follows events but in this case, I shall make no order as to cost. The parties are ordered to bear their own costs incidental to the case.

FINAL ORDERS

 

1.     The Ordinance marriage celebrated between the parties on 4th May 1995 at the Registrar General’s Department is hereby dissolved and the marriage certificate cancelled.

2.     Petitioner’s reliefs “ii” o asking that the Respondent be ordered to pay maintenance pending suit is moot, same dismissed. In respect of her relief “iii” In the alternative, I order that, the Respondent shall pay to the Petitioner the lump sum of GH¢30, 000.00.

3.     The Petitioner’s reliefs “iv”,”v” and “vi” are refused, same are dismissed.

(SGD)

…………………………………………….

MAVIS AKUA ANDOH (MRS)

JUSTICE OF THE HIGH COURT

DIVORCE & MATRIMONIAL COURT “2” ACCRA.

COUNSEL:

FELIX AGYEKUM BOATENG BEING LED BY ZOMBIL NYARBA TOGETHER HOLD THE BRIEF OF KWEKU PAINTSIL FOR THE PETITIONER.

IDDI BAAH KUIRE FOR ANTHONY NAMOO FOR THE RESPONDENT.

AUTHORITIES

1.     OKUDZETO ABLAKWA (N0.2) V ATTORNEY GENERAL & OBETSEIBI – LAMPTEY (N0.2) 2 SCGLR 845

2.     ABABIO V AKWASI [1994-1995] 2 GBR 774

3.     BISI V TABIRI [1987-88] 1 GLR 360

4.     ADJETEY AND ANOTHER V ADJETEY [1973] 1 GLR @ PAGES 216-22

5.     MAJOLAGBE VRS LARBI 1959 GLR @ 190.

6.       T.K SERBEH AND CO LTD V MENSAH [2005-2006] SC GLR 341

7.     ZABRAMA V SEBGEDZI [1991] 2 GLR 221 @ 223

8.     MENSAH V. MENSAH [1972] 2 GLR, 198 at 204.

9.     KNUDSEN V KNUDSEN [1976]1 GLR @204

10. BECKLEY V BECKLEY AND ANOTHER, 1974 (1) GLR 393-403

11. OBENG V OBENG [2016]99 GMJ @ 183 CA

12. GILBERT ANYETEI V SUSAN ANYETEI CAN/J4/67/2021 DATED 2ND MARCH

2023,

13. KOFI AMOFA KUSI V AFIA AMANKWAH ADARKWAH [2022] 178 GMJ @ 53,

14. PETER ADJEI AND MARGARET ADJEI CAN J4/06/2021DATED 21ST APRIL 2021

15. QUARTSON V QUARTSON [2012] 2 SCGLR 1077 @ 1080

16. PETER ADJEI AND MARGARET ADJEI [2021] DLSC10156