GIFTY OWUSU ANSAH V. COLLINS DADZIE

JUDGMENT

AGBEVEY, J.

It is not in dispute that the parties were married under Akan custom and practice at Labadi, Accra in or about June 1999. With the assistance of the respondent the petitioner was able to join the respondent in the Netherlands where they cohabited. Petitioner is still resident in the Netherlands while the respondent is now in Ghana, specifically staying at, Ogbojo, Accra. The couple have four children between them all of whom live with their mother in the Netherlands with their ages ranging from 20 and 14 years old. 

From the processes filed by the parties they are in agreement that the marriage has broken down beyond reconciliation with each blaming the other for the breakdown in the marriage. Both parties accuse the other of adultery. The petitioner additionally accuses the respondent of cruelty and sought to tender evidence of this physical assault with scars she received from the respondent. The respondent also accuses the petitioner of disrespect and unreasonable behaviour. In respect to the allegation of adultery the Respondent admits fathering a child with another woman but denies adultery.  

Per the petition filed on the 15th day of August, 2014, the Petitioner is praying the Court for the following reliefs: 

1. That the marriage between the parties be dissolved. 

2. That the Petitioner be granted full custody of the children of the marriage.

3. An order for Respondent to provide maintenance of £1,000 a month for the upkeep of the children of the marriage. 

4. An order for the Respondent to account for the proceeds of the sale of the Petitioner’s House at No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra and the VW Passat Vehicle to the Petitioner. 

5. A declaration that the remaining property on House No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra is the joint property of Petitioner and Respondent. 

6. A declaration that the Petitioner is the joint owner of the properties listed in paragraph 9 above. 

7. An order for the valuation of the properties listed in paragraph 9 above.

8. An order for the Petitioner to be paid one half (1/2) share of the valued properties in paragraph 9 above. 

9. Lump-sum compensation of GH¢200,000.00 

The respondent cross-petitioned as follows: 

a). That the marriage between the parties be dissolved on grounds of Petitioner’s unreasonable behaviour and adultery

b). The Respondent has been paying and will continue to maintain the children of the marriage and pay their educational and medical expenses until they attain majority. 

I am to determine whether the marriage is broken beyond reconciliation and therefore grant the parties the divorce order they are seeking from this court. Even though their marriage was celebrated under Akan customary law and therefore a potentially polygamous marriage, section 41(2) of the Matrimonial Causes Act, 1971 (Act 367) permits me to apply this Act to even marriages other than monogamous marriages and grant appropriate reliefs including financial provision, custody arrangements taking the personal law of the parties into consideration. It is noteworthy that in applications for divorce, section 41(3) allows resort to the personal law of the parties giving recognition to the requirements of justice, equity and good conscience as well as factors including; 

(a) wilful neglect to maintain a wife or child; 

(b) impotence; 

(c) barrenness or sterility; 

(d) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; 

(e) persistent false allegations of infidelity by one spouse against another: 

Also to be considered in determining the break down in the marriage as per section 2 (1) of Act 367 are the following: 

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

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

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or 

(d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or 

(e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or 

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

The Petitioner, in her pleadings, among others, gave the particulars for the breakdown of the marriage as: the Respondent has been committing adultery; Respondent has fathered a child outside the marriage whom he has secretly registered with the Netherlands Embassy; lack of support or affection to be Petitioner; physical, verbal and emotional abuse of the Petitioner by the Respondent and lack of maintenance of the Petitioner and the children by the Respondent thereby causing financial hardship to the Petitioner. 

The Respondent has admitted in his pleadings and his testimony that he has had a child in 2011 with a woman by name Melisa Mabel Appiah and that the name of the child is Mitch Nana Yaw Dadzie. He however, denied having committed adultery as in his view, the parties’ marriage being of a customary nature, he could have married the mother of the said child. Having regard to the personal law of the parties, I cannot but agree with the Respondent that since a customary marriage is potentially polygamous, he did not commit adultery though Act 367 however, defines adultery as “Voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse.” 

The Petitioner has testified that the Respondent assaulted her physically and that she lodged a complaint with the Police. Exhibit ‘A1’, the English translation of a letter from the Amsterdam Police, indicates that a report on the ill-treatment of the petitioner on the 26th day of December, 1999 was made to the Police. The Respondent admitted the incident but explained that the Petitioner attacked him first and in the process of defending himself, the Petitioner’s head hit their bed. From the evidence I find such behaviour of the Respondent as unreasonable. Both parties have labelled each other as abusive. Whereas the Petitioner testified that the Respondent physically, verbally and emotionally abused her in support of which she tendered Exhibit ‘A’, the Respondent labelled the Petitioner as abusive and disrespectful.  

He stated in his evidence-in-chief that it was because of the petitioner’s disrespectful behaviour that they could not convert their marriage to one

under the Marriage Ordinance. According to the Respondent, on one occasion, their son called the police in Holland because of the petitioner’s abusive nature. This assertion has been denied by the Petitioner. He also told the court that he wanted the marriage to be dissolved as he had never been happy with his marriage. From the evidence, the respondent, as cross-petitioner could not substantiate the abusive and disrespectful nature of the petitioner in terms of sections 10 and 11 of the Evidence Act, 1975 (NRDC 323). See ZABRAMA v. ZEGBEDI [1991] 2 GLR 221. (1991) 2 GLR 221. Neither was the Respondent able to establish by way of evidence that the Petitioner is having an affair with a man in London. I am therefore unable to find that the petitioner has committed adultery. The Respondent’s relief one is therefore, dismissed. 

The Respondent in his pleadings and testimony told the Court that the Petitioner denied him sex. In the case of ADDO v. ADDO (1973) 2GLR 103, the Court held that ‘a wilful refusal to have sexual intercourse will entitle the party suffering as a result of it to leave the other’. The petitioner has not denied this piece of evidence and I so find. The parties are ad idem that they have not lived together since 2014. From the evidence, I find that the parties have not lived as man and wife since 2014 and the respondent consents to the dissolution of the marriage in terms of section 2 (1) (d) of Act 367(supra). It is in evidence that currently, the respondent has prevented the petitioner from staying at the respondent’s place of abode when she is within the jurisdiction such that she has had to stay in a guest house even though the marriage is yet to be dissolved. 

Additionally, the Petitioner testified that on being informed by the Respondent that he wanted a dissolution of their marriage, she came back to Ghana and invited her father who made futile efforts to dissuade the Respondent from going ahead with his decision to divorce the Petitioner. 

I find therefore that the parties after diligent effort could not reconcile their differences in terms of Section 2 (1) (f) (supra). Accordingly, on the totality of the evidence and the conduct of the parties, I find that the marriage has broken beyond reconciliation and I decree the said marriage between the parties, dissolved.

 

As part of the ancillary reliefs being sought by the Petitioner, she is seeking full custody of the children of the marriage and maintenance of €1,000.00 per month for the upkeep of the said children. The respondent is not contesting custody of the children who are living with the petitioner in Holland. In any case, the children have been brought up in Holland and it will be in their best interest to continue to live with their mother, the petitioner in Holland. I therefore award custody of the children to the Petitioner with reasonable access to the Respondent. 

The Petitioner pleaded under the particulars for the breakdown of the marriage that since 2004, she has single-handedly shouldered the responsibility ancillary to the proper upbringing of the issues of the marriage including school fees, medical bills providing shelter clothing and feeding and that despite repeated requests, the Respondent refused to maintain the children. The Petitioner however, admitted in her evidence-in-chief that the Respondent paid the fees of the kids yearly but he started paying maintenance from the 1st day of January 2014 and that all earlier contributions he made towards the upkeep of the home have been deducted from an amount of money he gave her in February, 2014.  

The Petitioner admitted that currently she lives on unemployment benefits which she uses to take care of the children. From the evidence, the Petitioner admitted that the Respondent started supplementing maintenance for the upkeep of the children and the home from January 2014. In the written address of Respondent’s counsel he stated that it was clear from the proceedings that the children are paid some form of financial benefit from the Netherland authorities which the Petitioner receives on their behalf. With respect, this is not apparent from the record.

The Petitioner told the Court that she was working in a family business as a manageress and that when the business collapsed she rather applied for unemployment benefits to enable her take care of the children. 

It is worthy of note that the Respondent in his cross-petition averred that he has been paying and will continue to maintain the children of the marriage and pay their educational and medical expenses until they attain majority.  

On the evidence, I find that the Respondent currently provides some form of maintenance to supplement the benefits that the Petitioner obtains from the Dutch authorities. 

Section 22 of Act 367 enjoins the court to make an order concerning a child of the household which it thinks reasonable and for the benefit of the child, award custody of the child to any person, regulate the right of access of any person to the child and provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. 

Section 18 (2) of the Courts Act 1993 (Act 459) and section 2 (1) of the Children’s Act, 1998 (Act 560) enjoin the court to consider the best interest of the child in any matter. 

Section 49 of the Children’s Act also enjoins the tribunal making a maintenance order to among others consider the age of the child, income and wealth of both parents and the person legally liable to maintain the child as well as the cost of living of the area where the child lives and the rights of the child among others. 

I find that the Respondent pays school fees and some form of maintenance. 

The children live in Holland with their mother. The oldest child, Valarie is now 20 years old but from the evidence she is in school. The other children are teenagers.  I have not been given evidence from which to calculate how much to award for the upkeep of the children and their schooling but I think maintenance of eight hundred Euros (€800.00) should be a reasonable amount taking into account the standard of living of the petitioner and the children. The Respondent is to be responsible for the educational and medical expenses of the children in addition. 

The Petitioner averred in paragraph 9 of the petition that the properties acquired by the parties during the subsistence of the marriage are as follows: 

a. A residential property known as House No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra. 

b. Two uncompleted storey buildings at No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra. 

c. Several acres of land at Agona Nyakrom in the Central Region of the Republic of Ghana. 

d. A washing bay at Madina. 

e. A landed property behind the Madina Washing Bay. 

f. A Jaguar with registration number Val 1 W. 

g. A Mercedes S Class Vehicle with registration number Val 2-14.

h. A Mercedes Vehicle with registration number GR 2750 Z. 

i. A Nissan Almera Vehicle with Registration number GR 3728-13.

With respect to reliefs relating to properties acquired in the course of the marriage, the petitioner is claiming as follows; 

a. An order for the Respondent to account for the proceeds of the sale of the Petitioner’s House at No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra and the VW Passat Vehicle to the Petitioner. 

b. A declaration that the remaining property on House No. 21 A. R. S. Lane, Ogbojo East, East Legon, Accra is the joint property of Petitioner and Respondent. 

c. A declaration that the Petitioner is the joint owner of the properties listed in paragraph 9 above. 

d. An order for the valuation of the properties listed in paragraph 9 above.

e. An order for the Petitioner to be paid one half (1/2) share of the valued properties in paragraph 9 above. 

f. Lump-sum compensation of GH¢200,000.00. 

It is my belief that the claims by the Petitioner will be resolved when the Court determines the issue of whether or not specific properties acquired by the parties in the course of their marriage can be declared as joint properties.  

The Petitioner testified that in the course of their marriage, the parties jointly acquired a washing bay at Ogbojo, four houses, one of which has been sold by the Respondent; four vehicles made up of two Mercedes Benz cars, one Jaguar and a Nissan Almera; acres of land at Agona Nyakrom as well as other lands at Ogbojo. 

The Respondent denied that the parties own any properties jointly. He testified that prior to joining him in Holland the Petitioner was able to save some money from her work with which she bought her own ticket and joined him in Holland. He stated further that the Petitioner brought enough money with her which they were able to use to regularize her stay in Holland and that when he suggested to the Petitioner that they put their finances together as other couples did in Europe to be able to sustain their stay, the Petitioner refused and declared that she would manage her own finances. He added that after she acquired her documents, the petitioner came down to Ghana in 1996 to acquire certain properties in her own name. Furthermore, the respondent stated that on regularising his own stay in the Netherlands in early 1996 and after having formed a company called Smart Vesprieding, he came down to Ghana to acquire properties in his own name in 1997. The respondent tendered registration documents in Dutch and an English translation of same which were admitted in evidence as Exhibit 5. The said exhibit shows that the business was a sole proprietorship owned by the respondent. 

The Petitioner did not only deny the assertion of the Respondent that she was secretive and not open about her financial matters but she also stated that it was not true that at the inception of their union and subsequent marriage, she made her plans to exclude the Respondent from joining their finances to enable them acquire properties jointly such that each of the parties acquired properties separately. She told the Court that the Respondent made her to sign a document in 2014 showing contributions she made towards properties they acquired in Ghana jointly. This document was subsequently tendered by the Respondent and admitted in evidence as Exhibit 2. 

Exhibit 2 is two parts. The first part is captioned “Proposal For Settlement on Mutual Agreement Made between Collins Kwesi Attah Panyin Dadzie and Gifty Owusu Ansah (Married Couple) Within The Period 2004-2010”. It catalogues properties owned by the respective parties and specifies the years such properties were sold and how much was realised from the sale. It also states that in the year 2007, a personal loan of €22,000.00 was taken from the Petitioner by the Respondent and that in the year 2010, an amount of €14,000.00 was collected by the respondent from the Petitioner for the purchase of a family car for the children of the couple. 

The second part of the agreement captioned “Agreement of Payments” states that “I COLLINS KWESI ATTAH PANYIN DADZIE solemnly promise to pay GIFTY OWUSU ANSAH an amount of One Hundred and Sixty Five Thousand Ghana Cedis as a (sic) current value of the properties sold, which was mutually agreed to be used for my personal venture.” The said agreement further states that although an amount of fifty–one thousand four hundred and twenty-nine Ghana cedis (GHC51, 429.00) was raised from her properties, the Respondent has agreed to pay to the Petitioner an amount of GH¢170,000.00 as the equivalent of the current value of the properties sold in addition to €36,000.00 borrowed from the Petitioner and that “all monies quoted in this agreement shall be paid by the end of 28th February, 2014”. The said agreement was signed by the Petitioner and the Respondent on the 7th day of March, 2014. 

The Respondent referred to the €22,000 in Exhibit ‘2’ as a loan from the Petitioner. He however did not disclose the purpose of the loan. As can be gleaned from Exhibit ‘2’, €14,000 out of the amount of €36,000.00 was meant to be used by the Respondent to purchase a car for the use of the petitioner and the children.  

In the instant case, the Respondent has admitted under cross-examination that he sold the old properties of the parties from the years 2006-2008 and for which the petitioner was paid GHC175,000.00 and €20,000.00 He added that these do not form part of the current landed properties, the subject matter of the dispute. From the evidence, I find that the parties had each owned landed properties separately which were sold and the petitioner’s share of the money was paid to her in February, 2014. I find also that the current properties do not form part of the properties that were sold. In respect of the current properties, the subject matter of this suit, the petitioner tendered photographs of the matrimonial home No 21 ARS Street, Ogbojo which were admitted in evidence as Exhibit ‘C’ series. 

The Petitioner averred in paragraphs 10 and 11 of the petition that during the marriage, the parties built two houses on the residential property known as 21 ARS Lane, Ogbogo, East Legon, one belonging to the Respondent the other belonging to her and that the Respondent has sold the Petitioner’s house and refused to render account for same to the Petitioner. 

According to the Petitioner, No. 21 ARS Lane, Ogbojo is not the self-acquired property of the respondent as asserted by him. She told the court that the parties had agreed that the Respondent would move permanently to Ghana to establish a business and to build a home for the family. The family would then relocate to Ghana to join him so that they will live together as one big family. However, when she broached the subject of relocating to Ghana, the Respondent confessed that he has had a child and was living with the mother of the child. In her evidence- in- chief the Petitioner testified as follows: 

“Q. In paragraph 8A of the Answer, Respondent says that House No. 21 ARS Lane, Ogbojo, East Legon is his self-acquired property. How do you react to it? 

A. It is also not true. My husband moved permanently to live in Ghana to establish a business and to build a home for us all. The agreement was if everything was achieved as we wished, the kids and I will move to Ghana and live together here in Ghana. In 2013, I told him it was time we moved in because everything was achieved. He did not agree with my decision. After insisting for time, he confessed that he was living with another woman with whom he has a child. So it was an agreement that we would build together and live together. It was not his property, it is our property.” 

The petitioner further testified that there is another building sited on 21 ARS lane in the Petitioner’s name which the Respondent has sold. A photograph of the said house was tendered as Exhibit ‘G’. According to the Petitioner, the parties, their children as well as their neighbours in Holland stayed in that house when they were on vacation to Ghana.  

The Respondent denied the averments of the petitioner. He averred that Exhibit ‘C’ where he currently resides and Exhibit ‘G’ which he claims he has sold are his personal properties. 

The respondent told the court that he built the house depicted in Exhibit ‘G’ within his own compound and that it is a business he does. He added that he built the said house and that he has had to rely on loans from friends including the the Ogbojo chief to complete the said house for sale. According to the Respondent, he used the proceeds from the sale of the said house to settle his indebtedness to the petitioner and other creditors. 

He testified that he completed Exhibit ‘G’ in 2013. He admitted that even though the children and the Petitioner as well as neighbours of the Petitioner in Holland had stayed in Exhibit ‘G’ which is a 5 bedroom house, during their vacation to Ghana, it was not meant to be a family home. He told the Court that he sold the said property depicted in Exhibit ‘G’ for US$350,000.00 in December 2013, and that he delivered the house to the buyer sometime in June 2014.

The Respondent also told the Court that Exhibit ‘H’, an agreement between him and the buyer of the said house which was drafted by an agent, was subsequently rejected by him. He told the Court that a new contract of sale was drawn up in respect of the sale of Exhibit ‘G’. The Respondent, on application by Counsel for Petitioner was ordered by the Court to produce the new agreement. The Respondent subsequently produced a copy of the new contract of sale which was tendered through him and admitted in evidence as Exhibit ‘N’. 

In respect of House number 21 ARS Lane, Ogbojo, it is the case of the Respondent that he sold a house he built whilst in Holland. He used the proceeds realised from same to build the washing bay as well as a three bedroom self contained house. Subsequently, he sold the latter property in 2008 and the proceeds together with those from the sale of the Mercedes Benz car were used to finance the construction of his current place of residence at number 21 ARS Lane, Ogbojo, photographs of which were tendered by the Petitioner as ‘C’ series.  

From the evidence, the petitioner who has the burden of proof, in terms of section 10, 11 and of the Evidence Act (1995) (NRCD 323) has not established that the said property shown in the photograph , Exhibit ‘G’ belonged to her. She merely tendered Exhibit ‘G’ which is a photograph of a completed building. In ZABRAMA v. ZEGBEDI [1991] 2 GLR 221 the Supreme court held that “the party who has the burden of proof must lead admissible and credible evidence from which the facts which he asserts can be properly and safely inferred”. In the circumstances I am unable on the preponderance of the evidence to make a finding that the property belonged to the petitioner as she averred in her pleadings. 

In respect of Exhibit ‘C’ No.21 ARS Lane Ogbogo, and Exhibit ‘G’, I am unable to make any finding as to the direct monetary contribution made by the Petitioner but it is worthy of note that the said properties were acquired during the subsistence of the marriage and on the principle of MENSAH v. MENSAH (2012) SC GLR 391 AND ARTHUR v. ARTHUR (2014SC GLR 543, I declare 21 ARS Lane, Ogbogo, East Legon where the Respondent currently resides, Exhibit ‘C’ and Exhibit ‘G’ as joint properties of the parties. The Petitioner has been taking care of the children in Holland giving the respondent the peace of mind to build a home in Ghana for which the petitioner is entitled to some beneficial interest. 

The Petitioner further testified that in the year 2005, she bought a VW Jetta car at the cost of thirty-five thousand Euros. (€35,000) for which she made instalment payments of four hundred and eighty-eight Euros, sixty-one cents (€488.61) for four years. She stated further that she used the said car in Holland for one and half years before shipping it to the Respondent in Ghana. She tendered the contract for the purchase of the Jetta car and bank statements showing instalment payments made towards the said car. These were admitted in evidence as Exhibit ‘J’ series. 

She testified that the Respondent has sold the car without rendering accounts for the proceeds of sale. 

The Respondent denied the assertion of the petitioner. He testified that he purchased the said car in the petitioner’s name at the time he was relocating to Ghana for the use of the petitioner and the children. He stated that he employed the petitioner in his company, Smart Versprieding to enable her meet the monthly instalments and that the car was bought in her name. 

According to the Respondent, the car was shipped to him in Ghana in or about two years of use because the Petitioner had a problem with her social security and could not own property at the time. He added that he went back to Holland and bought a VW Sharon for the family and that they used the said vehicle till 2010 when he replaced it with the current family vehicle, a Mitsubishi Grandis. The Respondent further stated that he used the VW Jetta car in Ghana for some time until it developed a gearbox fault for which reason he sold the VW Jetta for GH¢12,000.00. He said he used the amount in paying for the duty on the Jaguar car. Thus he contended that it was not her car. 

Per section 14 of NRCD 323, once the petitioner has established by documentary proof, Exhibit J series that the said vehicle was registered in her name coupled with her bank statements showing monthly instalment payments of €488.61, the burden shifted on the Respondent to show that the VW Jetta was his. See Barkers-Woode v. Nana Fitz (2007-8) SC GLR 879 and Dzaisu v. Ghana Breweries LTD. (2007-2008) SCGLR 539. The petitioner tendered documents covering her purchase of the said car. In the case of Fosua v. Adu Poku v. Dufie (dec’d) and Adu Poku Mensah (2009) SC GLR 310, the court held that “it was settled that documentary evidence shall prevail over oral evidence.”  

It was for the Respondent to produce sufficient evidence that will lead the court to deduce that his version is more probable that the Petitioner’s documentary proof in the form Exhibit ‘J’ series. Although he has produced Exhibit ‘M’ which is the company’s ownership and profit-sharing structure, it has no nexus with the acquisition of the car. I find on the evidence that the car belonged to the petitioner and the respondent is to render accounts and pay 50% of the sale proceeds to the petitioner. 

The Petitioner also tendered building permits and a site plan in the Respondent’s name for the construction of two separate storey buildings and photographs of two uncompleted storey buildings which were admitted in evidence as Exhibit ‘D’ series. In respect of the properties in question this is what ensued during the evidence-in-chief of the Petitioner:

“Q. In respect of the two uncompleted storey buildings at Ogbojo, the Respondent says in paragraph 8B that he is just a caretaker of those properties. How do you react to that? 

A. We are the owners of the houses. In 2013, July, I came down with all four kids on holiday. We all drove to the site. We decided that after completion, we sell one of the houses and buy a bigger house in Holland. In July, 2014, after church service, he took my son to the site to show him how far he has gone, but this time without me. The documents and building permits are all in my name”. 

The Petitioner also denied that the Respondent sold two of their uncompleted properties. She disputed the respondent’s testimony that he was currently a caretaker of the said properties. She added that in the year 2013 when she returned to Ghana, they visited the site and decided that after completion one of the houses would be sold to enable the parties buy a bigger house in Holland.  

She further testified that in July 2014, after church service, the Respondent took their son to the site and showed him how far the property had been developed. She said that all the documents and permits in respect of those properties are in her name. However a close examination of the of the said exhibits show that they are in the Respondent’s name and I so find the Respondent on his part, testified further that Exhibit ‘D5’ relates to land gifted to him by one Nii Joseph Torgbor Obodai. He told the court that the building on the land is what is shown in Exhibit ‘D6’. In one breath, he stated that he sold that property in January 2014 and that the buyer has put up two properties on it. In another breadth he said he sold one of the properties to a lady in Saudi Arabia and he is only a care taker of the said property.  

Other documents comprising a search report in the name of the Petitioner and a site plan in the name of the Respondent as well as photographs of bare land were tendered by the Petitioner and admitted in evidence as Exhibit ‘E’ series. Exhibit ‘E’ is in respect of a site plan in the name of the Petitioner but this piece of land is located at New Bortianor. According to the petitioner, these were properties owned jointly by the parties. 

The Respondent also admitted under cross-examination that he sold the land shown in Exhibit ‘E2’ which land is situate behind the washing bay. He said that originally it was a piece of land with a drinking well and he took a loan from a friend, worked on it and sold it to the said friend in 2013. He also told the court that Exhibit ‘E1’ is a big gutter which he was in the process of acquiring for purposes of extending the washing bay. 

The petitioner testified that the cars shown in Exhibit ‘F’ series were bought by the parties for the benefit of the family. She is seeking a declaration that they were jointly acquired. In respect of the vehicles which are shown in Exhibit ‘F’ series, the Respondent admitted that at the commencement of the action, he had 3 cars in his possession but because they were faulty he sold the Mercedes X Class - a 2008 model and a Jaguar X - a 2002 model which vehicles’ photographs are shown in Exhibits ‘F’ and ‘F1’ respectively. He added that he used part of the proceeds to pay for the school fees of the children.  

According to the Respondent he bought the Nissan Almera, Exhibit ‘F3’ for Isaac Gyasi, the manager of his washing bay who has in turn resold it.

The court also admitted a building permit application and building permit, receipt for payment of same, drawings, provisional property rate bills and receipt as well as an indenture all in the petitioner’s name, and photographs of a washing bay which were tendered by the petitioner as Exhibit ‘B’ series. 

The Petitioner testified that Exhibit ‘B’ series which are in her name support her assertion that though the properties were in their individual names they were not only jointly acquired, but they were also meant to be for their joint beneficial interest. The petitioner added that the Respondent tricked her into signing over the land on which the washing bay is sited to the Respondent. She said that the Respondent gave her two pages of paper to sign to enable him apply for a loan to finance the development of the washing bay. Subsequently she got to know that it was a transfer of the washing bay land to the Respondent. 

The Respondent tendered Exhibit ‘6’ series which are correspondence relating to the Respondents social security and tax liabilities in the Netherlands. According to the Respondent it was basically due to his tax liability that on the advice of his lawyer he was compelled to leave Holland to settle in Ghana. As a result, he put the Petitioner’s name on title documents on land which he acquired from the chief of Ogbojo for the washing bay to avoid possible repercussions relating to his tax challenges in Holland. According to the Respondent, the Petitioner transferred the property to him when she came to Ghana for money due her from the Respondent. The Respondent tendered a land title certificate covering the said piece of land which has been registered in the Respondent’s name. This was admitted in evidence as Exhibit ‘4’. It pertinent to note that the petitioner disputed the version of the respondent with regard to the washing bay land.

It is pertinent to note that Section 20 (1) of Act 367 empowers the Court to make orders for either party to pay to the other, financial provision or convey movable and/or immovable property as settlement provided it is just and equitable. 

The Respondent in his testimony admitted having sold some landed properties belonging to his wife, the Petitioner. He has maintained throughout the trial, that right from the onset of their union and subsequent marriage, at the instance of the Petitioner, the parties agreed to keep their finances separate and to acquire properties separately. He denied that they owned any properties jointly. According to the Respondent, upon his relocation to Ghana, he sold his uncompleted house. On the instructions of the Petitioner, he disposed of her properties which she had earlier acquired separately. He sold those properties, paid the proceeds to the Petitioner with interest and that she was very happy with the proceeds.  

The Petitioner in her testimony denied that the parties agreed to keep their own finances separately and to acquire individual properties. She explained that because they were illegal immigrants on arrival in Holland it was not possible to open a joint account. Under cross examination, the Respondent admitted that the parties’ children do not bear his surname due to arrangements made to regularise their migrant status in the Netherlands. The Petitioner testified further that the initial properties acquired prior to the Respondent’s relocation to Ghana were facilitated by her father who used her name for the preparation of title deeds in respect of those properties. She contended that all along, their properties were jointly acquired for the benefit of the parties and their children. 

 The Respondent told the Court that the Petitioner instructed him to sell her properties in the year 2006 – 2008 and upon a visit to Amsterdam in the year 2009, the Petitioner demanded the proceeds of the sale of the said properties and that he the Respondent did not have the money at the time to pay to the Petitioner. The Petitioner drafted an agreement between the parties concerning her properties as well as loans the Respondent took from the Petitioner during their cohabitation in Holland. The said agreement was signed by the parties. The said document was tendered by the Respondent and admitted in evidence as Exhibit ‘3’. 

The law reports abound with cases in the past which held that unless a wife could establish substantial contribution or express agreement, she was not entitled to property acquired during the subsistence of the marriage on the dissolution of such marriage. See QUARTEY v. MARTEY (1959) GLR 377 and BENTSI ENCHIL v. BENTSI ENCHIL (1976) 2 GLR 309, CLERK v. CLERK (1991) GLR 583 AND ACHIAMPONG v. ACHIAMPONG (1982-83) GLR IO17. 

However, the Article 22 (2) of and (3) of the 1992 Constitution of Ghana provides a solid basis for distribution of spousal property. It provides as follows: 

(3) With a view to achieving the full realisation of the rights referred to in clause 2 of this article. 

(a) Spouses shall have equal access to property jointly acquired during the marriage; 

(b) Assets which are jointly acquired during marriage shall be equitably distributed between the spouses upon dissolution of the marriage. 

The courts have given effect to the above provision in the distribution of spousal property as seen in recent cases in which they have held that contribution to the acquisition of spousal property need not be only in financial terms. It is incontrovertible from the evidence that all the landed properties as well as the cars listed in paragraph 9 of the petition were acquired during the subsistence of the marriage. The point of departure is that whereas the Petitioner claims the properties were jointly acquired from their joint finances and businesses, the Respondent has maintained that right from the inception of their sojourn abroad and subsequent marriage, the parties agreed to acquire properties separately.  

In the case of ABABIO v. AKWESI IV (1994 – 1995) GBR 774, the Supreme Court held that “the general position of 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”. See Section 11(1) of the Evidence Act, 197, (NRCD 323) which requires a party to produce sufficient evidence to avoid a ruling being made against him/her. From the evidence, it is not clear whether the petitioner made direct financial contributions towards the acquisition of the landed properties in question as it was agreed between the parties from exhibit 2 that the respondent was repay money lent to him by the petitioner. 

Nonetheless, In the case of GLADYS MENSAH v. MENSAH (2012) SC GLR 391 at 401 the Supreme Court held that “Common sense and principles of general fundamental human right 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 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 massive assistance that the one spouse had derived from the other.”  

In respect of the other properties this what ensued in the petitioner’s evidence-in chief.

Q. In respect of the Agona Nyakrom property the Respondent says in paragraph 8C that he acquired those acres of land for his external family. How do you react to that? 

A. It is also false. But I did not mind because he secured my kids and I have the Washing Bay and under normal circumstances it would not have been a problem. 

Q. Respondent says that at paragraph 8D that you signed over the Washing Bay to him and collected money. 

A. It is not true. In February 2014, my husband asked me to come down for money in respect of our old properties. He then asked me to sign two pages of sheets which was supposed to give him the authority to ask for money from the bank to complete the Washing Bay. So it was like a collateral. There was no money paid to me. I do not even know the reasons. He was going to write a letter in addition to the two pages I signed. I did not even know whether there were other pages as well as the indenture. I just saw it when it was sent to me through my mail. 

With respect to the Washing Bay, the Respondent explained to the Court that he bought the property in the name of the Petitioner at the time he relocated to Ghana from Amsterdam as a result of the problems he had with the tax authorities in Holland and that at all material times, the Petitioner knew that she was holding the property on his behalf∙ He added that when the Petitioner came down for payments of the proceeds of her properties which the Respondent had sold earlier, she in turn transferred the washing bay land to the Respondent.  

The Respondent in support of his testimony tendered an audio recording on a compact disk. This device was admitted as Exhibit ‘1’. This audio recording was played in Court and the speaker was speaking in the Twi language. The recording was interpreted by the Court interpreter.

According to the Respondent he made the recording. Although the Petitioner admitted that the voice in the media was hers in view of Section 7 of the Electronic Transactions Act, 2008 (Act 772) which provides that: 

(1) The admissibility of an electronic record shall not be denied as evidence in legal proceedings except as provided in this Act.  

(2) In assessing the evidential weight of an electronic record the Court shall have regard to: 

(a) the reliability of the manner in which the electronic record was generated, displayed, stored or communicated,  

(b) the reliability of the manner in which the integrity of the information was maintained,  

(c) the manner in which its originator was identified, and 

(d) any other facts that the Court may consider relevant.

From the evidence the Respondent admitted that he did not only put together the media device but he also modified it. It is not surprising that it is only the petitioner’s voice which is heard and not a two-way communication between the parties. He also admitted that the recordings were not made in one day. I will therefore not attach any weight to Exhibit ‘1’, the audio-recording. 

The Petitioner in her testimony, disputed the Respondent’s version of the circumstances surrounding her transfer of the washing bay to the Respondent. She said the Respondent gave her some blank documents to sign under the pretext that he needed her authority to enable him apply for a bank facility to complete the washing bay. She implied that she was tricked into signing documents which turned out to be a transfer of the washing bay to the Respondent. 

Section 25 of NRCD 323 provides that “Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successor’s interest”. The Petitioner cannot impugn Exhibit ‘4’ as she is a party to that document. 

She has not pleaded fraud or undue influence in respect of the transfer of the washing bay. See AFRICAN DISTRIBUTORS LTD v. CEPS (2011) 2 SCGLR. 955. 

In the case of GLADYS MENSAH v. MENSAH (2012) SC GLR 391, the Court held that financial contribution should not be the only yardstick to determine whether or not a party can benefit benefit from property acquired during the subsistence of a marriage, on the dissolution of same. In the case of ARTHUR (NO.1) v. ARTHUR (NO.1) (2013-14) 1 SCGLR 543 at 560, the Supreme Court which re-affirmed its decision in MENSAH v. MENSAH (2012) 1SCGLR 391 emphasized that “Marital property is thus understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition.” 

From the evidence, the Petitioner lives in Holland with the 4 issues of the marriage who as at the date of filing the petition on the 15th day of August were 17, 15, 14, 12 years old respectively. The Petitioner in her testimony said the parties agreed that the Respondent was to relocate to Ghana to set up a matrimonial home and business for the benefit of the family. Hence she was looking after the children in Holland whilst the respondent was to establish a business for the benefit of the family in Ghana. Having found that Exhibit C, NO. 21 ARS Lane Ogbojo, East Legon, was acquired in the course of the marriage, on the principle of GLADYS MENSAH v. MENSAH (supra) the petitioner is entitled to a share of the said house.  

It is also apparent from the evidence that for those properties, that is, the cars, which were sold during the pendency of the suit, the Respondent intended to overreach the decisions of the Court regarding property or financial settlement. In the case of RIBEIRO v. RIBEIRO (1989 – 90) 2 GLR 109 SC ADADE JSC stated that “it would seem to me that as soon as the petition for divorce is filed, the husband should not dispose of properties without reference to the Court, if he is to escape the charge of attempting to defeat orders for financial provision or property settlement under Section 26 (1) of Act 367.”  

Section 26 (1) of Act 367 provides as follows; “The court may by order restrain either party to the marriage, or any other person, from permitting the disposition of the assets or property of either party to the marriage, and the court may rescind any disposition of such assets or property that has been made with the intention of defeating the financial provision or property settlement of the other party, except that a disposition for value to a purchaser in good faith may not be rescinded”. 

Although the Respondent claimed to have sold the various houses acquired during the subsistence of the marriage, apart from Exhibit N which is a contract of sale, in respect of Exhibit ‘G’, he failed to exhibit any instruments affecting the transfer of an interest in land in accordance with Section 1 (1) and (2) of the Conveyancing Act 1975 (NRCD 175) which state as follows: 

“(1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3. 

(2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee.” 

Thus the Respondent as a cross petitioner merely mounted the witness box and repeated the averments in his pleadings. Section 11 (4) requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of a fact was more probable than its non existence. Save Exhibit ‘G’ there is no iota of evidence that he has sold the said properties being the two uncompleted houses depicted in Exhibit ‘D4’, as well as other immovable properties shown in Exhibits ‘D6’, and ‘E2’. 

The Respondent testified that he was engaged in the business of building and selling houses. He has not established by evidence that he has registered or is actually engaged in any such business. In Barkers-Woode v. Nana Fitz,[ ] SCGLR the Supreme Court held that “It is trite law that a mere assertion of a party’s pleadings in the witness box without proof did not shift the evidential burden onto the other party”. 

T

he Respondent disputes the contention of the Petitioner that the idea behind the establishment of the washing bay business was to provide security for the Petitioner and the children. According to the Petitioner, in exchange for the large acres of land acquired by the parties at Agona Nyakrom, she was content to have a share of the Washing Bay as a result of which the Parties pooled their resources to develop it as such. She tendered exhibit B series which are an indenture and property rate bills in the petitioner’s name. From the evidence this property was assigned by the petitioner to the respondent as evidenced by Exhibit ‘4’.  

Per section (1) NRCD 323 “except as otherwise provided by law, including a rule of equity the facts recited in a written document are conclusively presumed to be true as between the parties to the document or the successor’s interest”. As noted earlier she has not pleaded fraud or undue influence. In respect of the other properties relating to Washing bay and the land behind the Washing Bay, the Respondent is entitled to those properties solely. In the case of FYNN v. FYNN and OSEI (2013- 2014) 1 SCGLR a wife sued the purchaser of a store together with her husband who was the vendor of the store on the grounds that she (wife) jointly owned the store with her husband. She claimed that she contributed financially towards the purchase of the store and was therefore a joint owner whose consent and concurrence should have been obtained prior to the sale.  

The purchaser who was the second defendant mounted a stiff defence and disputed the plaintiff’s claim. The second defendant also relied on the defence of bona fide purchaser for value without notice. In dismissing the appeal against the decision of the Court of Appeal which had affirmed the trial court’s judgment in support of the 2nd defendant/respondent, the Supreme Court held that “however there could be situations where within the Union, parties might still acquire property in their individual capacities as, indeed was their guaranteed fundamental right as clearly enshrined under Article 18 of the 1992 Constitution which case they would also have the legal capacity to validly dispose of individually acquired property…..” It is to be noted that the plaintiff/appellant in that case claimed she contributed money towards the purchase of the property in question which she could not prove before the court. It must also be noted that the defendant/respondent/respondent therein successfully relied on the plea of bona fide purchaser for value without notice.  

Having found that No. 21 ARS Lane, Ogbojo, East Legon is jointly acquired property, is the Petitioner entitled to 50% share of the said property. In BOAFO V. BOAFO (2005 -2006) SCGLR 705, the parties who had lived abroad acquired properties in Ghana. They operated their finances jointly and the wife, the Respondent therein had made financial contributions to the acquisition of the properties in issue. The trial court on dissolution of their ordinance marriage, gave a bigger share of the properties to the petitioner therein on the ground that the wife’s contribution could not be identified.  

The Supreme Court dismissed the petitioner’s appeal from a Court of Appeal decision and ordered the sharing of the property on a 50/50 percentage basis. The Supreme court referred to MENSAH v. MENSAH (1998 – 99) SCGLR 350 and stated that “the equitable sharing of joint property would ordinarily entail applying the equality principle, unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership.” “The principle of equality is the preferred principle to be applied in the sharing of property unless in the circumstances of a particular case, the equities of the case would demand otherwise”.  

In the case of QUARTSON v. QUARTSON (supra), the ‘Supreme Court referring to MENSAH v. MENSAH (Supra) held that:  

“The 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 and that it should be applied on a case by case basis, with a view to achieving equality in the sharing of marital property. Consequently the facts of each case will determine the extent to which the ruling applies”. 

In the instant case, the Respondent has admitted under cross-examination that the old properties of the parties which he sold from the years 2006-2008 and for which the petitioner was paid GHC175,000.00 and €20,000.00 do not form part of the current landed properties, the subject matter of this suit. 

I am enjoined to take into account having regard to the facts and circumstances of this case what is just and equitable. The Petitioner in her petition described herself as a businesswoman even though in her evidence-in-chief she said she is unemployed and on disability benefits. She is ordinarily resident in Holland where she lives with the 4 children of the marriage whose ages range from 20-14 years. The Respondent who told the court he holds a Dutch passport lives in Ghana. He is a businessman.

Having regard to the circumstances of this case it is my humble opinion that the parties are to share the matrimonial home 21 ARS Lane on the basis of 30% for the petitioner and 70% for the Respondent. As regards Exhibit ‘G’ which I have already declared as joint property, I award 20% of the US$350,000.00 being the proceeds of sale of Exhibit ‘G’ to the petitioner. 

In respect of the other properties as shown in Exhibit ‘D5’ and ‘D6’ which comprise 2 uncompleted storey buildings which the Respondent claims to have sold for reasons given supra, I find from the evidence that although these properties were acquired by the Respondent, they are joint properties as they were acquired during the subsistence of the marriage. 

In respect of the vehicles, Exhibit ‘F’ series, the Respondent claims to have sold F1 and F. He stated that he has gifted the Nissan Almera, F3 to one Isaac Gyasi the manager of the Washing Bay F3 and the latter in turn sold the said car. These cars were disposed of during the pendency of the suit without recourse to the court. I have earlier expressed my abhorrence of the respondent’s conduct. Be that as it may, the Petitioner has admitted that the Respondent purchased a car for the children and her use in Holland. 

The Petitioner is also seeking financial provision of GH¢200,000.00 from the Respondent as compensation. Is she entitled to it? 

I have in considering the property settlement taken due cognizance of the circumstances of the parties and the marriage. It is not clear from the evidence how much disability benefits the Petitioner is paid in Holland. I am aware that they have been married for 20 years with children whose current ages are 20, 18, 17 and 14, years old. The Respondent described himself as a businessman. From the proceeds of the washing bay that he is managing which have been shown as Exhibit ‘K’ series, the Washing bay was making an average income of GH¢600 a day in January 2012, about 5 years ago. Having regard to the circumstances of the case the Respondent is to pay the Petitioner a financial provision of GH¢100,000.00 to be paid over 6 months from the date of judgment. In arriving at this figure I took into account, the financial obligations on the respondent in respect the children’s school fees, maintenance and the fixed deposit at Beige Capital with a principal of GH175,000.00 invested by the Petitioner from proceeds of the earlier properties sold and paid to her by the Respondent.: 

To recap. I order as follows: 

1) The Customary Marriage celebrated between the Petitioner and Respondent in June, 1999, is dissolved. 

2) The Petitioner is awarded custody of the children of the marriage with reasonable access to the Respondent. 

3) The Respondent is to pay maintenance of 800.00 Euros per month for the children. 

4) The Respondent is to pay 50 % of the proceeds of Jetta Car to the Petitioner.  

5) No 21 ARS Lane Ogbogo where the Respondent currently resides is declared joint property. 30% of the said house is to be settled on the petitioner and 70% on the respondent, 

6) In respect of Exhibit ‘G’, I award the cedi equivalent of seventy thousand United States dollars (US$70,000.00) being 20% of US$ 350,000.00 being the proceeds of sale of the said house. The amount is to be paid to the petitioner by the respondent at the prevailing rate.

7) The petitioner is awarded a final provision of One Hundred Thousand Ghana cedis (GH¢100,000.00) to be paid over six months. 

Subject to express orders, made in relation to the reliefs of the parties, all other reliefs stand dismissed. 

(SGD.) 

CECILIA DON-CHEBE AGBEVEY J. 

JUSTICE OF THE HIGH COURT