PHILIP KOFI ACHEAMPONG & EBENEZER ADU GYAMFI V. MONICA BOATENG

JUDGMENT

TETTEH-CHARWAY, J.

The history of this case as agreed upon by Counsel for the parties is that the plaintiffs applied for Letters of Administration to administer the estate  of their brother, Ebenezer Obeng Akrofi, who died intestate. Claiming that she was the wife of the deceased, the defendant caveated and applied to  be joined as an administrator of the deceased’s estate. The plaintiffs  resisted her application on the ground that the deceased allegedly divorced  the defendant before his death. To determine whether the defendant was  the wife of the deceased at the time of his death and whether she qualified  to be joined to the plaintiffs as an administrators of the deceased’s estate,  the plaintiffs filed this suit. 

Briefly, the facts of this case are that the first plaintiff, Philip Kofi  Acheampong, is a brother and customary successor of Emmanuel Obeng  Akrofi (deceased) while the second plaintiff, Ebenezer Adu Gyamfi, is the  first plaintiff’s older brother. The defendant, Monica Boateng, on the other  hand, is the disputed wife of the deceased. 

In a nutshell, the plaintiffs’ case as can be gleaned from their statement of  claim is that before his death, the deceased divorced the defendant.  However, the defendant, after the deceased’s death sold some lands  belonging to the estate of the deceased. The plaintiffs therefore urged the  court to restrain the defendant from intermeddling with the estate of the  deceased pending its distribution. 

Conversely, the defendant, in her statement of defence, denied the  plaintiff’s assertion that the deceased divorced her before his death. She further denied selling any lands belonging to the estate of the deceased or  intermeddling with the deceased’s estate, for that matter. 

In their reply to the defendant’s statement of defence, the plaintiffs claimed  that the customary marriage celebrated between the defendant and the  deceased was dissolved customarily at Asante Akim Adomfe in 2004.

At  the close of pleadings therefore, the following issues were set down for  determination;

1. Whether or not the defendant had been divorced and was not living  with the deceased, Emmanuel Obeng Akrofi, any longer prior to his  death 

2. Whether or not the defendant has arrogated to herself the power of  intermeddling 

3. Whether or not the defendant has sold part of the lands of the  deceased which should not be countenanced 

4. Whether or not the defendant should be ordered to put an end to  her act of selling the lands of the deceased until the property of the  deceased are distributed and shared 

5. Whether or not an order of the court be made to restrain the  defendant and agents to desist from their continuous acts of  intermeddling with the properties of the deceased once and for all. 

Essentially, the five issues set out above can be reduced to two core issues namely; 

1. Whether or not the deceased divorced the defendant before his death 

2. Whether or not the defendant intermeddled with the estate of the  deceased after his death.

On both issues, the plaintiffs bore the burden of proof, not only in view of  the defendant’s denial of their assertions that the deceased divorced her  and that she intermeddled in the deceased’s estate but also in view of the maxim, “he who asserts must prove.” In the case of Ackah v. Pergah  Transport Ltd and Others (2010) SCGLR, 728 at 736, Adinyira JSC  succinctly explained the nature of the duty imposed on a party who bears  the burden of proof in a civil case in the following manner; 

“it is a basic principle of the law on evidence that a party who bears  the burden of proof is to produce the required evidence of the facts  in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes  the testimonies of the party, material witnesses, admissible hearsay,  documentary and things (often described as real evidence), without  which the party might not succeed to establish the requisite degree  of credibility concerning a fact in the mind of the court or tribunal of  fact such as a jury. It is trite law that matters that are capable of  proof must be proved by producing sufficient evidence so that on all  the evidence a reasonable mind could conclude that the existence of  the fact is more probable than its non-existence. This is a  requirement of law on evidence under sections 10(1) and (2) and 11(1)  and (4) of the Evidence Act, 1975 (NRCD 323)”  

Thus the plaintiffs had an obligation to produce sufficient credible  evidence to substantiate their claims, on a balance of probabilities. In  establishing their case, the second plaintiff testified on behalf of the two  plaintiffs and called one witness. In his evidence in chief, the second  plaintiff claimed that the deceased was his younger brother. According to  the second plaintiff, the deceased caught the defendant in flagrante delicto with a stranger in their bedroom. He further claimed that the defendant  attributed her conduct to the deceased’s mother’s witchcraft and refused  to apologize to her mother-in-law when requested to do so by the deceased.  As a result, he claimed that the deceased did not live with the defendant  as husband and wife for eight years before his death. He further claimed  that the defendant did not perform any widowhood rites during the funeral  of the deceased but rather reported the deceased’s mother to the Chief. He  claimed that the chief asked the defendant to pay an amount of GHC200  toward the funeral of the deceased, if she was indeed a wife of the deceased  but the defendant refused to do so. He maintained that the defendant’s  name was omitted from the deceased’s obituary as she was not his wife by  then. He further stated that when the defendant was notified of the deaths  of deceased’s father and sister she refused to attend their funerals on the  basis that she had no husband. Under cross-examination, he was  emphatic that the defendant’s participation in the deceased’s funeral was  limited to her role as the mother of the deceased’ children and not as a  wife. 

The plaintiffs’ witness, Yaa Ampofowaa, testified that she was the paternal  aunt of the plaintiffs and the deceased. She claimed that when the  deceased caught the defendant in the act of adultery, he took her to his  parents to inform them that he no longer desired to marry her. According  to her, the defendant’s parents pleaded on her behalf but the deceased’s  mother was adamant that the deceased could have died. She claimed the  defendant insulted her mother-in-law for making this statement. The  deceased therefore insisted that the defendant should apologize to her  mother-in law before he would take her back. She claimed that the  defendant refused to apologize to her mother-in- law and also refused to  attend the funeral of her sister in law. She further claimed that, as demanded by custom, she took a drink to the defendant’s mother to inform  her of the plaintiff’s father’s death but the defendant’s mother refused to  accept the drink saying that the defendant had no husband. She stated  that when the deceased died, the defendant, after one week, came to the  house wailing but the deceased’s mother stopped her and reminded her of  her conspicuous absence during the funeral of the deceased’s father. She  claimed that the defendant’s mother took the matter before the Chief of  Adomfe who referred the case to the Ankobiahene for settlement. She  claimed that when the Ankobiahene failed to settle the matter, it was  referred back to the chief of Adomfe who requested that the defendant  should pay an amount of GHC2000 towards the funeral of the deceased, if indeed, she was his wife. She claimed that the defendant did not make  any financial contribution towards the funeral of the deceased and  furthermore that the items that the defendant brought to the funeral were  not accepted by the deceased’s family. She maintained that the deceased’s  marriage to the defendant was dissolved at Adomfe. 

Under cross-examination, the plaintiffs’ witness described the manner in  which customary marriages are contracted and dissolved at Adomfe. She  insisted that the deceased divorced the defendant before his death and  claimed that the deceased left his church as a result of the defendant’s  adultery. She fiercely resisted the suggestion that the deceased forgave the  defendant and reconciled with her before his death. She further claimed that the deceased cohabited with the defendant because they had children  and that they were never properly married under custom. She denied the  suggestion that the first plaintiff was introduced to the defendant and her  children as customary husband and customary successor respectively after the deceased’s funeral. She finally claimed that the deceased married  another woman and had two children with her. 

Thus at the close of the plaintiffs’ case, no evidence had been adduced to  prove the assertion that the defendant intermeddled with the estate of the  deceased after his death. Furthermore, whereas there was no dispute over  the fact that the deceased and the defendant were married, at some point,  anyway, the plaintiff’s witness complicated the plaintiffs’ case by denying  the existence of a valid customary marriage between the deceased and the  defendant, insisting that they cohabited because of the children. By so  doing she undermined the very foundation of the plaintiffs’ claim that there  was a divorce since technically, there can be no divorce if there is no  marriage. As was stated in the oft-quoted case of Mosi v. Bagyina (1963) 1  GLR 337per Van Lare JSC, “you cannot put something on nothing and  expect it to stay there. It will collapse.” By analogy, one cannot claim that  a marriage that did not exist was dissolved! 

The defendant, on the other hand, in her evidence in chief, testified that  the deceased married her under customary law and they remained married for twenty-eight years. She claimed that their marriage, which was blessed  with six children, was never dissolved until the deceased died. While  admitting that she did commit adultery in the course of her marriage to  the deceased, she maintained that their families resolved the matter  amicably and she reconciled with the deceased after her mother presented him with a fowl and three eggs. She however claimed that after the  reconciliation, the deceased began to maltreat her to the extent that her  mother appealed to the Kumawu chief to intervene in the matter. At the  settlement, she claimed she was asked to present a sheep to the deceased,  which she did. She claimed that although the deceased agreed to be  reconciled to her, her mother-in-law advised him not to take her back as  she could infect him with HIV/AIDS. Provoked by this statement, she  claimed that she inadvertently insulted her mother-in-law. But the  deceased asked her to apologize, which she did. She claimed that her  mother-in-law accepted her apology and she thanked her. Thereafter, the  deceased intensified the physical abuse to the extent that she was  compelled to report him to the Legal Aid Office. Unfazed, he moved her  belongings out of the house and locked her out with their children. When  they broke into the home, the deceased allegedly reported the matter to  the police. At the Police Station, she claimed she was advised to report the  matter to the Domestic Violence Victims Support Unit (DOVVSU). She  claimed that the deceased refused to apologize to her at the request of the  DOVVSU police therefore the matter was taken to court. She further  maintained that she participated in the funeral of the deceased and did all  that custom demanded of her as a widow. She maintained that the  deceased never divorced her before his death.  

Under cross-examination, the defendant maintained that although the  deceased subjected her to various forms of abuse in the course of their  marriage, he did not divorce her customarily. She further denied  intermeddling with the estate of the deceased but admitted that she had  sold a “pure water” making machine belonging to the deceased to cater for  the educational needs of her children. She denied the assertion that the  deceased did not live with her for eight years before his death but admitted  he did not live with her in the same house for a considerable period. 

The defendant’s first witness basically testified about being present at the  customary marriage between the deceased and the defendant. He maintained that no steps were taken by the family of the deceased to  divorce the defendant and that if something of that nature had happened  he would have been informed since he was the one who received the drinks  and items presented by the deceased’s family on behalf of defendant’s  family during the marriage ceremony. The rest of the witnesses called by  the defendant corroborated aspects of her testimony namely, the  defendant’s participation in the funeral of the deceased as a widow, the  deceased’s maltreatment of the defendant, as well as the settlements reached in respect of the issue of adultery and related matters. They also  testified about the appointment of the 1st plaintiff as customary successor  of the deceased at the funeral and the undertaking by the 1st plaintiff to  pay off the debt incurred at the funeral and to take care of the defendant  and her children. Significantly, all the witnesses called by the defendant  denied having witnessed any dissolution of the marriage between the  deceased and the defendant. 

After a careful examination of the totality of the evidence led in this case,  I find that whereas there was sufficient evidence to establish the fact that  the deceased and the defendant were married under customary law, there  was insufficient evidence to prove the plaintiffs’ claim that the deceased  divorced the defendant before his death. 

This is because a valid customary marriage can be dissolved either  customarily or by filing a petition for divorce. (See section 41 of the  Matrimonial Causes Act, 1971 Act 367). Therefore, the onus lay on the  plaintiffs to adduce credible and sufficient evidence to establish by what  means the deceased’s marriage to the defendant was dissolved. In the case  of Zabrama v. Segbedzi (1991) 2 GLR 221 it was held per Ampiah J.A, as  he then was that; 

“A person who makes an averment or assertion which is denied by his  opponent has the burden to establish that his averment or assertion  is true. And he does not discharge this burden unless he leads  admissible and credible evidence from which the fact or facts he  asserts can properly and safely be inferred. The nature of each  averment or assertion determines the degree and nature of that  burden” 

It would appear from an examination of the evidence adduced by the  plaintiffs that the plaintiffs’ assertion that the deceased divorced the  defendant before his death was based on the fact that the deceased did  not live with the defendant as husband and wife for a period of eight years  before his death. Although the defendant denied this assertion, she  admitted that the deceased consigned her to a room outside the main  house after they were reconciled.  

It is however significant to note that under the Evidence Act, 1975 NRCD  323 there is no presumption of divorce under any circumstances  whatsoever. Furthermore, section 2 (1) (e) of the Matrimonial Causes Act 1971 (Act 367) provides that; 

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

(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. 

From the above, it can be seen that the fact that a couple have not lived  together as husband and wife for a continuous period of at least five years  is an indication that the marriage has broken down beyond reconciliation.  However, it is open to any of the parties to take steps to file a petition for  divorce, dissolve the marriage customarily or in the alternative to maintain  the status quo. Indeed, it is not uncommon in contemporary times, to find  couples living apart for various personal or socio-economic reasons or  living together though estranged. The fact of a divorce cannot therefore be  presumed from the separate living arrangements of a couple or from the  persistence of disagreements, no matter how violent they may be.

Similarly, section 2 (1) (a) of the Matrimonial Causes Act, 1971 (Act 367)  provides 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- 

(a) That the respondent has committed adultery and that by reason  of such adultery the petitioner finds it intolerable to live with the  respondent 

Again, from the above provision, it can be seen that the fact that a party  has committed adultery by reason of which the other party finds it  intolerable to continue in the marriage is an indication that the marriage  has broken down beyond reconciliation. Again, it is open to the aggrieved  party who finds it intolerable to live with the offending party to seek a  divorce customarily, to file for divorce in court or in the alternative to  remain in the marriage. Therefore, in the absence of proof that a party took steps to dissolve the marriage, there can be no presumption of a divorce.  

In the present case it can be reasonably inferred from the totality of the  evidence led that the deceased submitted the matter of the defendant’s  adultery to their respective families for settlement. There is no indication  from the evidence led by the plaintiffs that the marriage was finally  dissolved. Rather, it can be deduced from the evidence led by the plaintiffs that the deceased took steps to report the conduct of the defendant to their  respective families and thereafter continued to live with the defendant although their relationship was estranged. Furthermore, the evidence led  by the plaintiffs that the defendant was required to contribute financially  to her deceased’s husband’s funeral to prove that she was a wife did not  appear to conform to any known custom. I am inclined to accept the  plaintiff’s case that she did indeed participate in the funeral of the  deceased not only in her capacity as the mother of his children but as the  widow. 

I therefore hold that the plaintiffs’ assumption that the deceased divorced  the defendant based on the fact that they did not live together as husband  and wife for eight years before his death and based upon the defendant’s  act of adultery is completely flawed. I find, on a balance of probabilities  that the plaintiffs failed to adduce credible evidence to prove their assertion that the deceased divorced the defendant before his death. 

With regard to the issue whether or not the defendant intermeddled or  interfered with the estate of the deceased, the defendant admitted under  cross examination that she sold the deceased’s “pure water” making  machine to cater for the educational needs of her children. I do not think  that the defendant can be faulted for selling property belonging to the  estate of her deceased husband to take care of their children especially in  view of the attempts made by the deceased’s customary successor to  preclude her from the administration of the estate. It would have been  remiss on her part not to act in the best interest of her children. The  plaintiffs on their part did not lead any evidence to prove that the  defendant had sold lands belonging to the estate of the deceased. In the  circumstances, I hold that the plaintiffs failed to prove their case against  the defendant. 

In the circumstances, I order that the defendant should be joined to the  applicants for Letters of Administration so that the estate of the deceased  can be distributed forthwith in accordance with the provisions of the  Intestate Succession Law, 1985, PNDCL 111.  

I hereby dismiss the plaintiff’s case. I award costs of GHC3,000 to the  defendant to cater for filing fees, transportation cost of witnesses called by  the defendant and cost of legal representation. 



Costs to be paid from the deceased’s estate. 

(SGD)

BARBARA TETTEH-CHARWAY (MRS) 

 JUSTICE OF THE HIGH COURT