PHILIS LARYEA V ISAAC NII TEIKO TAGOE
by HIS LORDSHIP, JUSTICE ABOAGYE TANDOH
Jurisdiction
HIGH COURT
Judge
HIS LORDSHIP, JUSTICE ABOAGYE TANDOH
Catalog Type
Case
Judgement Date
Jun 22, 2023
Summary
This case concerns a petition for the dissolution of a customary marriage contracted in 2002 between the Petitioner and the Respondent. The Petitioner sought a divorce on the ground that the marriage had broken down beyond reconciliation and further requested division of matrimonial property, refund of certain monies, alimony, and maintenance for their two children. The Petitioner alleged that the Respondent was unfaithful, brought another woman into the matrimonial home, subjected her to abuse, and neglected his responsibilities toward the family, including the upkeep and education of the children. She also claimed that she solely bore the cost of their daughter’s education abroad and lost money during an incident where her belongings were ransacked. The Respondent denied these allegations, contending that the Petitioner had abandoned the marriage, returned the customary drinks (signifying dissolution), and that the properties in question were acquired with another woman. The main issues before the court were whether the marriage had broken down beyond reconciliation and whether the parties were entitled to a share in the properties acquired during the marriage. On the issue of dissolution, the court found that although neither party sufficiently proved misconduct such as adultery or abuse, the evidence showed that both parties had withdrawn from the marriage and could no longer live together as husband and wife. The court therefore held that the marriage had broken down beyond reconciliation and granted the divorce under the Matrimonial Causes Act, 1971 (Act 367). Regarding property distribution, the court applied constitutional and judicial principles that property acquired during marriage is presumed to be jointly owned, and that both financial and non-financial contributions are relevant. The court rejected the Respondent’s claim that the house belonged solely to him and found that the matrimonial home and one tipper truck were jointly acquired. Accordingly, the court awarded the parties equal shares in the house, while the tipper truck was granted to the Respondent. The court, however, refused the Petitioner’s claims for refund of sums of money, holding that she failed to prove that the Respondent was liable for those expenses, as they were incurred without his involvement. On ancillary reliefs, the court awarded the Petitioner a substantial amount as alimony and ordered the Respondent to pay monthly maintenance for the children, in addition to covering their educational and medical needs. In conclusion, the court dissolved the marriage, ordered equitable distribution of property, granted alimony and child maintenance, and dismissed claims that were not sufficiently proven, emphasizing that proof and fairness guide financial and property reliefs in matrimonial disputes.
Full Content
JUDGEMENT
The Petitioner on the 13th day of February, 2020 filed a petition for the dissolution customary marriage between the Petitioner and the Respondent Since 2002 in Accra.
According to the Petitioner, the marriage is blessed with two issues who were at the ages of sixteen (16) and fourteen (14) at the time of filing the petition.
It is the case of the Petitioner that after marriage she stayed in Tema and Nsawam and later moved to join the Respondent before they later moved to Krispol City, Kasoa in their own house. The Petitioner contends that before moving to Krispol City the Respondent had a bruli Ulcer and when he was finally treated, he went to live at Mambrobi where she joined him later. The Petitioner said she was then going to Tema on daily basis to engage in petty trading.
According to the Petitioner, she came home one day from Tema and realized that the Respondent had a brought a woman into the matrimonial home by name Ayele. The Petitioner states that when she complained, the Respondent and his paramour subjected her to severe beatings.
The Petitioner states that the Respondent was engaging in debauch activities by chasing a lot of women and therefore deserted for a long time and only came back when she had given birth to the 2nd issue. The Petitioner further states that the Respondent has shirked his responsibilities as a man for so many years. She further contends that the Respondent does not pay school fees of the issues and the Petitioner is the only one who has been performing the responsibilities.
According to the Petitioner, quite recently, the first child by name Darly Tagoe had an opportunity to study in the United States of America and this was brought to the notice of the Respondent but he failed to contribute with the cost being forty thousand Ghana Cedis ( GH¢ 40,000.00). The Petitioner further states that when Darly Tagoe had admission to study in the United States, she withdrew GH¢ 30,500.00 out of which she changed Ghc 30, 000.00 into USD 6,000.00.
The Petitioner contends that the Respondent has been harassing her to leave their matrimonial home as the Respondent once brought out her belongings from the house with the house ransacked during which she lost GH¢ 30,000.00 in the process.
The Petitioner contends that during the pendency of the marriage, they both acquired a three bed room house and two tipper Truck vehicles with registration numbers GR 659 K and GR 1222 – 12.
The Petitioner then prayed for the following;
a. That the marriage be dissolved
b. An order by the Honourable Court for the fair and equitable share of the following properties;
i. three bedroom with HNo at 350 A/7 located at Krispol City, Kasoa
ii. Tipper truck vehicles with registration numbers GR 659 K and GR 1222 – 12 which the parties acquired during the subsistence of the marriage
c. An order by the Honourable Court to compel the Respondent to pay an amount of USD 6,000 or its cedi equivalent which the petitioner could not find after her belongings were ransacked by the Respondent at their matrimonial home.
d. An order by the Honourable Court to pay the expenses of Ghc 40,000.00 incurred by the Petitioner alone to send their daughter Darlyn Tagoe to the United States for further studies.
e. An order by the Honourable Court to cause the Respondent to pay alimony to the Petitioner.
f. Cost of Counsel to the instant suit.
The Respondent in his response to the petition denied the assertions made by the Petition. According to the Respondent, he was sick for almost 13 months and even in those difficult periods he paid for the school fees of his children and maintained them contrary to what the Petitioner stated. The Respondent the Petitioner was quarrelsome and his conduct became ungovernable.
The Respondent says that the Petitioner did not inform him of any opportunity his daughter to study abroad. According to the Respondent had named his first child as Deide and the second as Korkol, the Petitioner later changed and named them Darly and Debora.
According to the Respondent, the Petitioner had told him the face that he was not the father of the marriage and returned his drinks so he took solace in a woman by name Regina Aku in 2007. The Respondent contends that he secured a job and Regina also continued with trading activities in Tema Station.
The Respondent, further states that, one Abu introduced him to tipper truck business and later he bought a plot of land at krispol, Kasoa.During which Regina Aku paid the initial amount of Ghc 1,900.00. And he paid the remaining amount by installments.
According to the Respondent, the Petitioner walked out of the marriage having returned his customary drinks. And that the Krispol house is not a matrimonial house because it was built by Regina Aku and himself.
In response to paragraph 37 of the petition, the Respondent states
a. That the petitioner has returned the customary drinks and walked out of the marriage since 2005.
b. That the Petitioner is not entitled to any share in the property marked as H/No At 350 A/7located at Krispol City, Kasoa and vehicle with registration number GR 659 which is the only vehicle he owes.
c. That the Petitioner is not entitled to the Refund of USD 6, 000 or its cedi equivalent.
d. That the Petitioner is entitled to the payment of Ghc 40,000.00 to her, purported to have been expended on a daughter’s trip to the United States.
e. That the Petitioner is not entitled to alimony.
The Petitioner and the Respondent filed their respective witness statements. But on the 23rd June 2022 the date scheduled for Case Management Conference, the petitioner appeared in court for that purpose but the Respondent failed so to do without any just cause though duly notified.
THE LAW
Section 1(1)(2) of the Matrimonial Causes Act,367,1971 provides as follows:
1. A petition for divorce may be presented to the court by either party to a marriage
2. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.
The issues for determination are:
1. Whether or not the marriage has broken down beyond reconciliation that warrants dissolution.
2. Whether or not any of the parties is entitled to all or any of the properties acquired during the subsistence of the marriage.
THE EVIDENCE, ANALYSIS AND THE APPLICABLE LAW
In her evidence before this court, the Petitioner like the respondent repeated almost all that she stated in her pleadings. The Petitioner informed the court that they got married in 2002 and have two issues Darlyn Tagoe and Deborah Tagoe who are 16 and 14 years respecibvely.
It is the case of the Petitioner that when he returned home from Tema, the Respondent had brought in a woman to the matrimonial home and further threatened to eject her. This piece of evidence was denied by the Respondent in his pleading except that he admitted bringing the woman Regina Aku home because the Petitioner abandoned him to his fate when he needed her most. The Respondent added that he did so also because the Petitioner had returned the customary drinks for the marriage signifying the dissolution of the marriage.
It is not in doubt in doubt that the marriage had broken down but not the extent of having been dissolved. Also one would have expected the Petitioner to stay closer to her husband as feasible especially when she was unwell a situation that brought in Regina Aku into the matrimonial home.
I further find that the Petitioner did not discuss with the Respondent prior to engaging in the United States study programme for the daughter hence the Respondent’s failure to assist as required of a father. It will therefore be difficult to ask the Respondent to pay USD 6,000.00 and Ghc 40,000.00 something he had not planned for as same was solely planned and executed by the Petitioner though laudable. See Exhibits A – L.
Therefore much as the marriage between the parties are parallel and difficult now reconcile, the Petitioner failed to lead evidence to establish the liability of the Respondent to refund Ghc40,000.00 and USD 6,000.00 to the Petitioner.
SEE:
1. ZABRAMA V. SEGBEDZI1 and MAJOLAGBE V LARBI AND ORS2
2. SECTION 11(1)(4) OF THE EVIDENCE ACT, 1975
3. FOSUA & ADU – POKU v DUFIE ( DECEASED) & ADU POKU – MENSAH [2009] SCGLR 310 @ 325 - 327
4. BAKERS – WOODE v NANA FITZ [2007 – 2008] 2 SCGLR 879
5. SARKODIE v FKA COMPANY LTD [ 2009} SCGLR 65,
In the case of Hughes v Hughes (1973) 2 GLR 342 per Sarkodee J. as he then was, in holdings 2 and 3 , the court held thus:
“(2) It was not enough merely to refer to an isolated act which infuriated one spouse and point to it as grave and unreasonable. To succeed a petitioner had to show that the respondent's conduct had reached a certain degree of severity, and must be such that no reasonable person would tolerate or consider that the complainant should be called on to endure.
In the instant case, no one is saying that there are no quarrels and sometimes insults in marriage but the evidence as adduced by the Petitioner is not sufficient to persuade this court to that effect.
I rather find that the parties have both withdrawn from the marriage bond and that the flamboyant love that characterized the marriage has dissipated to the point of total collapse beyond reconliation.
From the foregoing and per the evidence on record it will be difficult for the parties to continue to live together as husband and wife.
SEE: s2(1) of the MATRIMONIAL CAUSES ACT, 1971 (ACT 367) and s12 (1)(2) of the Evidence Act , 1975 NRCD 343.
Article 22 (2) (3) of the 1992 Constitution of the Republic of Ghana laid down the foundation for regulating the property rights of spouses. Article 22(2)(3) of the constitution states:
(2) Parliament shall as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this article -
(a) Spouses shall have equal access to property jointly acquired during marriage
(b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.”
Even though the current legal position is devoid of the guidelines and regulation for the full implementation of article 22(2) of the constitution, case law over the years had guided judicial decisions on spousal property rights. Some of the most recent decisions in spousal property rights have been MENSAH v MENSAH {2012} 1 SCGLR and ARTHUR v ARTHUR { 2013 – 2014} SCGLR.
In the case of MENSAH V MENSAH (SUPRA) cited by both Counsel in their respective legal submissions to this court, the Supreme Court held at holding 2 thus :
“(2) common sense and principles of general fundamental human rights would require that a person who was married to another, and had performed various household chores for the other partner like keeping the home, washing and keeping dirty laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner had a free hand to engage in economic activities, must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved. The reason was that the acquisition of the properties had been facilitated by the massive assistance that the one spouse derived from the other”
The Supreme Court cases of Boafo v Boafo { 2005 – 2006} SCGLR 705, Arthur v Arthur as well as Mensah v Mensah ( Supra) seem not to solely place ones contribution on the basis of physical cash whether substantial or minimal but the collective role in the entire union in developing the marriage as it acquires properties for the common benefit of the parties.
The distribution of the properties must be equitable in a way that gives equal treatment to everybody.
In the instant case, I find that the properties listed in common which I have no reason to doubt were;
1. A 3- Bedroom house HNo at 350 A/7 located at Krispol City, Kasoa
2. Tipper truck vehicles with registration numbers GR 659 K
Even though the Respondent in his defence denied the contribution of the 3 - bedroom house, I find that as an afterthought as there is no evidence on record contrary to what the Petitioner has said in her evidence before this court. I therefore have no doubt in my mind as to the authenticity of the properties acquired during the pendency of the marriage as established.
CONCLUSION:
Having considered the totality of the evidence adduced, the authorities cited and the applicable law, it is the candid view of this court that the marriage between the Petitioner Philis Laryea and the Respondent Isaac Nii Teiko Tagoe has broken down beyond reconciliation and same is decreed DISSOLVED.
Custody of the two children of the marriage is granted to the Petitioner with access to the Respondent during school vacation and when one is unwell and his presence is so required.
The distribution of the properties acquired during the pendency of the marriage and given the circumstance of this case are as follows:
a. The 3- Bedroom house HNo at 350 A/7 located at Krispol City, Kasoa, is a jointly acquired property and each of the parties ( Petitioner and Respondent) has 50% interest or share. One can buy the other out or they sell and share the proceeds equally.
b. The tipper truck vehicle with registration numbers GR 659 K is granted to the Respondent
c. The Respondent is to pay Fifteen Thousand Ghana cedis ( Ghc 15,000.00) as alimony to the Petitioner
d. The Respondent is also to pay Six Hundred Thousand Ghana cedis (Ghc 600.00) monthly for the maintenance of the children. Also to cater for the educational and medical needs of the children with prior agreement of the parties in the choice of school and medical facility/
e. There will be no order as to cost and each party is to bear his or her own cost.
(SGD)
JUSTICE ABOAGYE TANDOH
HIGH COURT JUDGE.