NAOMI QUAYSON VRS JOSEPH ACQUAH

JUDGMENT

Pursuant to leave granted by this Honourable Court (differently constituted) on 3rd July, 2018, the Petitioner filed the instant petition on 4th July, 2018 praying, inter alia, for the dissolution of the customary law marriage between the parties.

The Petitioner avers that the parties, both Ghanaians, got married under customary law on or about April 1984 although the parties started cohabiting in 1981. Following the marriage, the parties lived at Abura, Cape Coast. The Petitioner avers that she is currently a trader and the Respondent is also currently unemployed. The latter was formerly a drainage contractor and soft drink manufacturer. The marriage was blessed with five children, all of whom are adults.

The Petitioner avers that the marriage between the parties has broken down beyond reconciliation due to adultery and unreasonably behaviour on the part of the Respondent. Contrary to the Rules of Court (High Court (Civil Procedure) Rules, 2004 (C.I. 47)), specifically Order 65 rule 6(h), the Petitioner lumped together the facts she intends to rely on for the purposes of showing that the marriage has broken down beyond reconciliation. However, it appears that this non-compliance, being a mere irregularity, has been waived in accordance with Order 81 of C.I. 47.

It is the case of the Petitioner that the Respondent, although earns income from his business and is a man of substance has failed to maintain the Petitioner regularly as a wife for almost Twenty-Four (24) years to the pain of the Petitioner and the Petitioner had to struggle to fend for herself and the children with the support of relatives. Also, the Respondent persistently threatened the Petitioner with death and harm. According to the Petitioner, the Respondent always threatened the Petitioner of making sure she does not get anything upon his death despite having toiled with the Respondent to acquire various properties jointly in their Thirty-Four (34) years of marriage.

The Petitioner further avers that the Respondent persistently levelled unsubstantiated allegations of stealing and other petty family and matrimonial issues at the Police Station, Cape Coast on several occasions leading to several invitations, arrests and detention of the Petitioner by the Police to the physical, mental and emotional trauma of the Petitioner. The Respondent also trumpeted, on several occasions, that he is no longer interested in marrying the Petitioner and that he will torment the Petitioner to leave the marriage. To this end, the Respondent adopted various schemes to eject the Petitioner from the matrimonial home such as changing the doors to the bedroom which has the Petitioner’s belongings. The Petitioner avers that the Respondent, indeed, removed the Petitioner’s belonging from the bedroom and the Petitioner had to return the belongings to the bedroom.

The Petitioner avers that the Respondent openly and in the presence of the children verbally abused the Petitioner as a non-entity to the embarrassment and discomfort of the Petitioner. The Respondent also refused to eat from the hands of the Petitioner and has engaged a maid as a cook for him. The Petitioner states that the Respondent has removed all household gadgets for household comfort, entertainment and usage and denied the Petitioner access to them to the Petitioner’s chagrin and discomfort. The Petitioner further avers that the Respondent subjected her to several suits and litigations as married couples all over the courts in Cape Coast, some of which are pending and this has psychologically, emotionally and physically affected the Petitioner and her health.

The Petitioner avers that the Respondent has had amorous relationship with several women not legally married to him under customary law and continues to engage in such amorous relationships. The Petitioner further avers that, on one occasion she found the Respondent in the room of his girlfriend both in bed. The Respondent had the Petitioner prosecuted unsuccessfully for invading his privacy and assaulting his girlfriend and for the breach of the peace at the District Court, Cape Coast in May 2018 to the embarrassment and discomfort of the Petitioner. The Petitioner avers that there is an absolute breakdown of communication between the parties and the parties have not had conjugal relations as man and wife for the past Three (3) years.

The Petitioner avers that the parties, during the existence of the marriage, acquired various properties through their joint efforts and trading activities although some of the marital properties are in the joint names of the Respondent. The Petitioner proceeded to list the said properties in paragraph 10 of the Petition. The Petitioner avers that she had at all material times paid monies from her trading business into the Respondent’s bank accounts which he used to construct some of the properties. The Petitioner states that the Respondent on several occasion during the construction of the matrimonial properties, collected monies from the Petitioner to pay the workers. Further, the Petitioner had to supervise the construction of the matrimonial home, procure building materials and cook for the prisoners and workers who assisted in the construction of the matrimonial home.

The Petitioner further stated that all efforts to reconcile the parties by families, friends and Pastors have been unsuccessful due to the attitude of the Respondent. Moreover, court attempted ADR of cases pending between the parties have also proven unsuccessful due to the conduct of the Respondent.

On account of the above, the Petitioner prays this Honourable Court for the following reliefs:

i.           That the customary marriage between the parties be dissolved.

ii.           A declaration that the properties listed in paragraph 10 are marital and matrimonial properties having been so acquired during the subsistence of the marriage.

iii.           A declaration that the Petitioner is a joint owner of the said properties having been acquired during the marriage and through the joint efforts and contribution of the parties.

iv.           Financial provision by way of property settlement from the Respondent’s share of the properties and/or lump sum payment for resettlement of the Petitioner.

The Respondent reacted to the Petition by filing his Answer and Cross-Petition on 6th August, 2018. The Respondent denied that the parties ever lived together after the marriage as man and wife. He avers that the Respondent was already married to Elizabeth Cobbina, his customary law wife who lived with the Respondent at Bentsir, a suburb of Cape Coast at his family house. The Respondent had by the time he lived with his customary law wife, Elizabeth Cobbinah, completed his self-acquired property at H/No. PV 58 Cape Coast with all structures completed. Furniture for the house were acquired from Takoradi. The Respondent and Elizabeth moved to live at H/No. PV 58 Cape Coast sometime in 1985.

The Respondent avers that at the time of the customary marriage between the parties herein, he had cohabited and passed through the thick and thin of life with his customary law wife with whom he had six (6) children. The Respondent further avers that apart from the children he had with his customary law wife, he also had other children with other women before his marriage to the Petitioner in 1984. The Respondent avers that after the customary marriage, there were occasions when the Petitioner visited Cape Coast from her residence at Takoradi to purchase soft mineral drinks and the parties spent a day or two at the house of one Dr Maurice Saah (now deceased) at Abura, a suburb of Cape Coast.

According to the Respondent, the marriage between the parties is facing challenges which are not beyond reconciliation. Further, the Respondent aver that there has been no attempts at reconciliation of the differences or challenges facing the marriage which are not expected in marriages. The Respondent therefore states that he will be amendable to a court ordered reconciliation or will plead for such reconciliation of the differences existing between the parties.

The Respondent avers that at his matured age of 82 years he will simply refrain from putting on board and in the public domain several acts of infidelity, insults, assaults, denial of sex, cooking etc and inducing her children to follow the Petitioner in such acts. The Respondent denied the particulars of adultery and unreasonable behaviour alleged by the Petitioner.

The Respondent, in response to the said particulars, avers inter alia that he has given the Petitioner One (1) estate house for residence at Pedu H/No. PVL 64, Cape Coast comprising of one chamber and hall in the original State Housing Company house, extension of additional room facilities on the same large compound comprising of a two- storey building of 3-bedrooms upstairs and 3-bedrooms downstairs with all amenities for the Petitioner’s upkeep for the past Two (2) years.

The Respondent further avers that he has since the past Ten (10) years allocated to the Petitioner two commercial stores within his private house at H/No. PV 58 Abura, Cape Coast facing the main Abura-Ankaful road and adjacent to the Abura market at zero rental payment by the Petitioner. In addition to the Two (2) commercial stores allocated to the Petitioner, the Respondent avers that he has capitalised the Petitioner with the sum of Twenty-four Thousand Ghana Cedis (GH₵ 24,000.00) being deposit demanded by the Pepsi Bottling Company sometime in or about 2014 to start her distribution/retailership of Pepsi. The Respondent avers that the Petitioner has also converted part of H/No. PVL/64 Pedu Estate into rental premises and has rented same to third parties without the Respondent’s consent and also collects rent.

The Respondent, inter alia, denied that the properties listed in paragraph 10 of the Petition are marital properties. He categorically denied that the Petitioner paid monies form her trading business into the properties in paragraph 10 of the Petition and further denied that workers who assisted the Respondent collected monies from the Petitioner.

The Respondent also cross-petitioned for the relief below:

i.           An equal share of the Petitioner’s 4 plots of land at Ankaful, Cape Coast purchased during the marriage with profit from the Respondent’s Pepsi Cola business financed and capitalised by the Respondent.

The Petitioner in turn filed a Thirty-Eight (38) paragraphs Reply and Answer to Cross- Petition on 6th February, 2019 wherein she, inter alia, joined issue generally with the Respondent on his Answer to Petition and denied every allegation contained in the Cross-Petition.

From the facts above, the germane issues for determination are:

1.     Whether or not the marriage between the parties has broken down beyond reconciliation,

2.     Whether or not the parties are joint owners of the properties listed in paragraph 10 of the Petition and thus the Petitioner is entitled to a share upon the dissolution of the marriage,

3.     Whether or not property settlement in this case is just and equitable.

The standard of proof in matrimonial cases, like any civil case, is proof by a preponderance of probabilities. This is the degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non- existence.

See Section 12 of the Evidence Act, 1975 (N.R.C.D. 323); ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728.

Therefore, the onus lies on a Petitioner who makes assertions which are denied by the Respondent to adduce sufficient evidence to prove his/her assertions as true or probable than that of his opponent otherwise, his claim fails and judgment will be given against him. It is worth stating that the Respondent abandoned his cross-petition against the Petitioner and thus relieved of any burden of proof in respect of same.

In this light, the Petitioner bears the onus of adducing sufficient evidence to tip the scale in her favour failing which, judgment would be entered against the Petitioner.

In respect of the first issue, the law is that the sole ground for granting a petition for divorce shall be that, the marriage has broken down beyond reconciliation. The law requires the Court to be satisfied that indeed, the marriage has broken down beyond reconciliation. Section 2(3) of the Matrimonial Causes Act, 1971 (Act 367) provides as follows:

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.

As gleaned from the above stated facts, whiles the Petitioner claims the marriage between the parties has broken down beyond reconciliation, the Respondent avers otherwise. From the facts, the Petitioner is therefore to satisfy this Court that:

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

b.     the Respondent has behaved in a way that the Petitioner cannot be reasonably be expected to live with him. (See Section 2(1)(a) & (b) of the Matrimonial Causes Act).

According to section 43 of the Matrimonial Causes Act 1971 (Act 367), adultery is the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse. A party who alleges adultery must provide proof of disposition and opportunity for committing adultery. Evidence which amounts to mere suspicion of adultery or opportunity alone will not suffice as proof of adultery.

In the case of ADJETEY V ADJETEY (1973) 1 GLR 216 the Court held that:

“Direct evidence of adultery is rare. In nearly every case, the fact of adultery is inferred from the circumstances which by fair and necessary inference lead to that conclusion. There must be proof of disposition and opportunity for committing adultery but the conjunction of strong inclination with evidence of opportunity will not lead to an irrebuttable presumption that adultery has been committed. Likewise, the Court was not bond to infer adultery from evidence of opportunity alone.”

Adultery may be difficult to prove since there is rarely direct evidence of same. However, the import of the above decision is that a party who alleges adultery must adduce such evidence as would enable the Court to make the necessary inference to the effect that the other party committed adultery.

The evidence of the Petitioner to establish the fact of adultery is merely a repetition of her pleading which, as shown supra, has been vehemently denied by the Respondent. In this regard, the Petitioner has failed to establish adultery. Even though there was opportunity, I cannot safely conclude, on the face of the evidence, that the Respondent committed adultery.

I am unable to agree with the conclusion of Counsel for the Petitioner in his Written Address filed on 11th October, 2023 on the import of the cross-examination of the Respondent reproduced in pages 4 – 5 of his Address. The relevant portions are reproduced below:

“It is to be noted respectfully submitted that Counsel for the Petitioner in support of the Petitioner’s claim of Respondent adulterous act in the course of the marriage confronted the Respondent under cross-examination on the claim of Adultery.

The material discourse ran as follows:

Q:       You recall a case which was before the District Court, Cape Coast, CC 160/2018 with the title the Republic vrs Naomi Quayson.

A:       Yes

Q:       It was a criminal case on the offence of unlawful entry disturbing public peace and assault.

A:       Yes

Q:       In that case you were the complainant in that case.

A:       I am not the one it is a certain lady I visited, it is the lady who reported the matter to the police.

Q:       You will recall that the said woman was your newly found lover.

A:       She is my family friend.

Q:       You will recall that you testified against the Petitioner.

A:       Yes

Q:       You will also recall that at the end of the full trial, the Petitioner was acquitted and discharged.

A:       Yes.

It is submitted that flowing from the above discourse on the Respondent amorous relationship with the said Betty Quayson leading to the unsuccessful prosecution of the Petitioner with the Respondent being the only witness for the said Betty Quayson against the Petitioner, and the subsequent acquittal and discharge of the Petitioner, it is no doubt that circumstantial evidence can be referred to so as to conclude reasonably that the claim of Petitioner that the Respondent has engaged himself in adulterous act has been established.”

With respect to Counsel for the Petitioner, I do not see correlation or nexus between the above discourse and adultery on the part of the Respondent. The prima facie import of the above is that, the Respondent’s conduct of visiting his family friend and subsequently testifying against the Petitioner irrefutably proves adultery. This, in my view, is clearly unfounded and does not even satisfy the requirement of proof of opportunity to commit adultery.

On the face of the evidence, this Court cannot reasonably make an inference of adultery on the part of the Respondent. To this end, the Petitioner’s claim fails.

In respect of the second fact of unreasonable behaviour, the law is that the conduct complained of must be sufficiently grave and weighty to justify a finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities would not suffice in this regard as parties are expected to put up with what has been described as the reasonable wear and tear of married life.

See MENSAH V MENSAH (1972) 2 GLR 198.

The Petitioner in her testimony gave evidence of the various suits instituted by the Respondent against the Petitioner. In my view, however, merely instituting an action against one’s spouse does not constitute unreasonable behaviour unless from the evidence, such action is malicious or in bad faith. The Petitioner in her evidence did not show that the Respondent instituted the suits against her with malice. Indeed, cross- examination of the Respondent revealed that EXHIBIT 5 (which is a suit entitled Joseph Acquah v Naomi Quayson & Ors) ended in favour of the Respondent. This was what ensued under cross-examination, in respect of Exhibit 5

Q: You have tendered exhibit 5 being a suit named Joseph Acquah vrs Naomi Quayson & Ors. Have you read it?

A:          No. it was in my favour.

Therefore, in the absence of evidence of malice on the part of the Respondent, I find that the mere institution of action against one’s spouse cannot constitute unreasonable behaviour under section 2(1) (b) of the Matrimonial Causes Act, 1971 (Act 367).

Moreover, there are other pieces of evidence which sought to establish the unreasonable behaviour of the Respondent. In the submission of Counsel for the Petitioner, he relied on the fact of sale of a Kia Rhino Truck as scraps by the Respondent. The Respondent during cross-examination testified as follows:

Q: You recall that you purchased Kia Rhino trucks to facilitate the Petitioner of her Pepsi business.

A:  Yes

Q: You also recall that along the line the Petitioner took the Kia Rhino to the fitting shop at Mpeasem.

A:  Yes, they sent it to the place and I went for it and sold it to scraps.

Q: Would you be in the position to tell the Court the last time you maintained the Petitioner.

A: I look after my children. I have not given her any money during our separation which is about 5 years.

It is clear from the above that the Respondent purchased a Kia Rhino Truck for the Petitioner in order to facilitate her business. However, the Respondent sold same to scraps when the truck was sent to the fitting shop. I am of the view that, this conduct, standing alone, is not sufficiently grave to take it out of the remits of reasonable wear and tear of family life.

In respect of maintenance, the law is that, it is a man’s duty to maintain his wife unless he incapacitated that he cannot work to maintain his wife and children. In that case, the wife will have to find some work to do to maintain the household.

See TENGEY AND MARY DOE V GEORGE DOE (1962) 1 GLR 361.

In this instant case, it is clear that the Respondent is an old man (82 years old at the commencement of this action) who, according to the Petitioner is currently unemployed. It has also been established in this Court that the Respondent advanced to the Petitioner the sum of Twenty-four Thousand Ghana Cedis (GH₵ 24,000.00) being deposit demanded by the Pepsi Bottling Company for the Petitioner to start her distribution/retailership of Pepsi. This, in my view, constitutes maintenance of the Petitioner.

In addition to the above, all other allegations of unreasonable behaviour on the part of the Respondent were not substantiated thus remain unproven and also mere allegations. The above notwithstanding, it is clear that the parties have not lived together as husband and wife for over Five (5) years as a result of the separation of the parties. This satisfies section 2(1) (e) of the Matrimonial Causes Act. Even though this fact was not alleged by the Petitioner, it is clearly borne out of the evidence and same can be seen in the testimony of the Respondent during cross-examination as reproduced above.

This Court is usually hesitant to dissolve a marriage, especially one such as this, where both parties are advanced in age. It was the Court’s expectation that having been together for so long and having endured marital turmoil in the past, the parties would have been able to reach a resolution that would preserve the marriage. Alas, in this as in so many cases, it is impossible to hold the union together. Indeed, as Respondent conceded during cross examination that he has already relocated and is living with a cousin. The court will not therefore attempt to move the proverbial Olympus and try to cobble this marriage back together by sheer force of judicial fiat, no matter how well intended.

In determining the second issue, Article 22(3) (b) of the 1992 Constitution is of great relevance. Article 22(3) (b) of the Constitution provides as follows:

“Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.”

Suffice to say that, the mere fact of a property being acquired during the subsistence of marriage does not automatically make the property a joint property deserving a fifty-fifty share upon the dissolution of the marriage. There are situations where, within the marriage, a spouse may acquire property in his or her individual capacity. This is premised on an individual’s constitutional right to own property either alone or in association with others.

See ARTICLE 18(1) OF THE 1992 CONSTITUTION; FYNN V FYNN & OSEI [2013- 2014] 1 SCGLR 727.

The Supreme Court has categorically held that the operative words in Article 22(3) (b) above are jointly acquired during marriage. Therefore, there must be evidence on record establishing the efforts of the parties in the acquisition of such property.

See the unreported cases of ADJEI V ADJEI (CIVIL APPEAL NO. J4/06/2021) DATED 21ST APRIL, 2021 (DELIVERED BY THE SUPREME COURT); GILBERT ANYETEI V SUSSUANA ANYETEI (CIVIL APPEAL NO. J4/67/2021) DATED 2ND MARCH, 2023 (DELIVERED BY THE SUPREME COURT).

The matter that is before us now concerns the fate of two properties at Abura PVL 58 which includes the 37 stores and Pedu PV 64 respectively. The existence of the rest of the Property listed in the paragraph 10 of the petition is questionable. It is important to establish that the source of the funds for the properties cannot be in dispute. The Petitioner did make attempt to make the case that she made a financial contribution but was unsuccessful.

The Petitioner avers in her pleading that she made some payments into the Respondent’s bank account as a contribution towards the construction of the properties. According to her, the Respondent took various sums from her for the purpose of paying the construction workers’ wages. Despite these averments, we do not have any payment slips or other evidence to validate her claim. Now, even in the absence of such evidence, this Court would have expected that she names a specific amount or amounts that she purports to have paid to the Respondent. With regard to the monies that were allegedly handed to the Respondent to pay wages, none of the witnesses that appeared before the Court was able to corroborate this significant claim. In the absence of any evidence, the Petitioner places the Court in a position where it can only speculate as to not only the veracity of her claim but also its purported value which is antithetical to how the law and this court operate. The Court is thus unable to accept this claim. It is trite knowledge that a Court cannot act on or reach conclusions based on unsubstantiated averments.

There was however some dispute as to whether the properties were acquired during the subsistence of the marriage. Petitioner led compelling evidence for her claim which was corroborated by her witnesses and the Court is minded to accept that the construction of the first floor of the Abura property not the ground floor was indeed completed during the subsistence of the marriage. Also the marriage was in existence during the refurbishment of the Pedu building.

To sustain a claim to a share of property as discussed, one must prove that the said properties were jointly acquired or that a substantial contribution was made towards that acquisition. The court notes that Petitioner rests her claim on having made a substantial contribution towards the acquisition of the property.

What the Court must now determine is whether the contribution made by the Petitioner rises to the level where it can be deemed as substantial. Substantial contribution implies a tangible and significant contribution that is more than just nominal. It is the Petitioner’s case that during the construction of the properties she supervised work on the sites and prepared food for the workers. This is a claim that bears some assessment, particularly regarding the nature and quality of the supervision that was offered by the Petitioner.

This Court was not apprised of any technical capability in the possession of the Petitioner that would have rendered her service indispensable to the project. Indeed, given this lack of expertise, this is service that could have been rendered by anyone and with respect, is hardly distinguishable from the oversight function provided by any garden variety security officer. It is difficult for this Court to accept that merely being on site, as the Petitioner appears to have been, constitutes a “substantial” contribution as can be gleaned from the letter and the spirit of the law.

In fact, this Court expected the Petitioner to rather seek comfort from the arguments upheld in ANYETEI V ANYETEI CA/54/67/21 unreported by Pwamang JSC that “emotional support and satisfactory matrimonial services by a spouse are also elements of contribution to the acquisition of asset during a marriage”. However, no such argument was presented before this Court and thus, the Court is unable to assess that contribution properly. Perhaps, Petitioner, in view of the repeated ruptures in this union, did not feel able to make such a claim, knowing that it would have been difficult to field such a claim under the heat of the counter-evidence that may have been presented.

In the absence of cogent evidence of the contribution made by the Petitioner, I find that the properties in question are the sole properties of the Respondent. The Respondent’s right under Article 18(1) of the Constitution above to own properties in his own name is not whittled down merely because he is married.

See FYNN V FYNN & OSEI supra.

The law on property settlement is as stated in section 20 of the Matrimonial Causes Act. Section 20(1) of the Act stipulates that:

(1) 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.

From the above provision, it clear that property settlement is discretionary and the discretion is to be exercised having regards to the facts surrounding each case. The underlying factor in exercising this discretion is whether on the totality of the evidence adduced in a particular case, the Court deems it just and equitable to make an order for settlement of property. In light of the facts and the evidence adduced in this case, property settlement in favour of the Petitioner is not equitable.

The Court notes that the Respondent, during cross examination, expressed an intention to gift the property at Pedu H/No. 64, the matrimonial home, to the Petitioner. This is a voluntary offer that the Court has no intention of placing its weight on. The Respondent may go ahead to fulfil that promise but that remains entirely his decision and the Court will not attempt to compel him in any one direction.

Further, the Petitioner also informed the Court of her current occupation of a store at Abura, purportedly given to her by Respondent to support her petty trading. Given that no evidence was provided by Petitioner that it was gifted to her to hold in perpetual occupation, it is the decision of the Court that the store returns to Respondent, upon the dissolution of the marriage.

On the totally of the evidence adduced, I am satisfied that the marriage between the parties has broken down beyond reconciliation. Also, on account of the above evaluation of the evidence adduced, the properties listed in paragraph 10 of the Petition, are the self- acquired properties of the Respondent. Thus, the Petitioner is not entitled to an equal share. This Court also finds it inequitable to settle any property on the Petitioner. However, the Petitioner is entitled to alimony.

The Respondent is hereby ordered to pay GH₵30,000 as alimony to the Petitioner.

(SGD)

BERNARD BENTIL, J.

[HIGH COURT JUDGE]

 

COUNSEL

 

ISAAC AGGREY FYNN ESQ. FOR THE PETITIONER.

 

K. O. AMPONSAH DADZIE ESQ. FOR THE RESPONDENT.