KUMBAL VRS KUUBETERSUUR (NR/TL/HC/E5/3/2021) [2024] GHAHC 353 (30 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT TAMALE ON THURSDAY THE 30TH DAY OF MAY 2024 BEFORE HIS LORDSHIP JUSTICE EMMANUEL BART-PLANGE BREW SUIT NO. NR/TL/HC/E5/3/2021 JULIAN KUMBAL VRS RICHARD KUUBETERSUUR ===================================================================== J U D G M E N T (1) Whether or not the marriage between the married couple parties has broken down beyond reconciliation, the answer is yes with all the efforts made by the families and Catholic Church to achieve reconciliation between the couple. The petitioner’s narration of the matrimonial history and journey with the respondent since they awfully married according to Dagaaba custom at Jirapa and then converted to ordinance on 13th day of December, 2008 appears to have sadly lasted for less than two (2) decades. Upon the evidence adduced by the Petitioner regarding the adultery of the Respondent with exhibits JK series of whatsapp chats between the petitioner’s husband and one Carine, JK1 being a request for money from the Respondent by Carine, and JK2, the resulting momo transaction following the request from the Respondent to his alleged paramour. Furthermore, the JK3 series of chats between another lady called Munder with Respondent is a final nail in the coffin for this marriage as the Respondent’s rebuttal of any infidelity committed by him was not sufficient to disprove the allegation of adultery against him. The Respondent’s answers under cross-examination about Carine and Munder were that the former is a susu manager he was in business with to save money but exhibit JK1 series being a “request for money from Respondent by Carine” in the words used context. Evidently, the said exhibit JK1 with the caption “Piknic Mercy” is yesterday 11.50AM. Hello dear, hope all is well by grace. “Please honey I kindly wanted to plead with you to help me something small to buy power (lights) it finished this dawn please ok”. It was answered by Respondent at 2:19PM that same quote” Oh sorry I do not have money in my wallet. At 2:20PM Sunday, via MTN GH reply “Ok I hear dear”, shows the sediments of a reserve marriage player without a certificate of holy matrimony on the bench but in active communication with the Respondent, in the midst of an active matrimonial turf whereby money, scarce economic resource is being sought by the said Carine if really she was the susu group administrator Respondent claimed she was in his counter exhibit “RK6”. Clearly from the foregoing evidence analysis, one finds that the writing on the wall is clear that Respondent presumably has reserve player wife without a public recognition by the families of the parties in this suit and also the family of the said Carine Baduweh. All the above together with the litany of Respondent going out and coming back late, lack of communication between the couple as well as alleged negligence to care for their family have become the plagues bedeviling their marriage, no wonder the parties live in separate rooms in the matrimonial home instead of sleeping together on a common bed point to the (2) The second issue of whether or not House at BLK A Plot 6 Kanvilli Kpawumo Residential Area, Tamale and a Plot No. 194, BLK D at Sanaayilli, Tamale were jointly acquired by the parties in the course of the marriage the substantial answer is yes with a modification claim that Respondent raised about the second plot not being his property anymore but not proven with better particulars of how it was ceded to any buyer or purchaser. Clearly the evidence preferred by both parties and the answers of the Respondent cross-examination leaves this Court in no doubt all the properties in the marriage were acquired during its pendency and includes the improvement of the educational value of the Petitioner when she was sponsored by the Respondent to climbing the socio-economic status ladder and now earns more income than the Respondent. When the claims of the Petitioner are examined and evaluated in the light of the objection of Respondent to paying a lump sum payment in lieu of a share in the matrimonial home which he wants to keep for himself, I find that the Petitioner is entitled to about 40% of the matrimonial home. The rationale is that petitioner made contribution to the acquisition of their matrimonial home as she claimed that she bought the first consignment of sand for the building with her salary which is higher than Respondent’s and also earned by the prior contribution sponsorship of her educational expenses Respondent claimed and also the securing of the employment she showed appreciation to her loving husband with exhibit “2”. At the least Petitioner never claimed to have jointly acquired the plots but she made a contribution so in legal or equitable terms she is entitled to 40% of the matrimonial home and all the other properties listed in his claims. These properties are to be valued in monetary or economic terms to work out the financial compensation package and so if the value comes to for example GH₵1,000,000.00 Petitioner is entitled to GH₵400,000.00, inclusive of the motorbikes and Toyota corolla Saloon car Respondent uses in fairness sake. (3) Lastly the issue of whether or not the house (matrimonial home) answered above and the Plot PLT 194, BLKD at Sognaayilli, Tamale should be shared between the parties, clearly the answer is yes, despite the claim of Respondent that it is no longer his, he did not show how. The Petitioner is also entitled to 40% of its value and for the Respondent to pay the costs of the petitioner, that I respectfully disagree because of the suffering of Respondent when he was denied sex by his lovely wife after he assisted her to climb the roof and who knows that it was the trigger to the adultery alleged against him per exhibit “JK 1” to “3” series. It is not an easy thing or biologically fulfilling desire when men are denied sex by their wives for them to act normally as a “monk” or a timorous soul/timid partner by watching your wife as a decoration when you request for sex. The Petitioner could not refute this allegation and also the demand by Petitioner that Respondent go for an STD (Sexually Transmitted Diseases) test to which he complied and he tested negative for HIV/AIDS and Hepatitis B and C but Petitioner succumbed to Hepatitis B and asked how come she had the disease, she cheekily told Respondent she bought it from the market. On the overall preponderance of the probabilities I find that the Petitioner is entitled to 40% of everything they acquired in the course of their marriage and also for the up-liftment of Petitioner status to a high income earner, each party should bear their own costs. The Respondent is given the option of paying the 40% value of all the properties with a lump sum payment or in the alternative the second plot together with all the motorbikes etc (inclusive of Toyota Corrola Saloon Car). Regarding the issue of Respondent having wasted her time and diminished her attraction value. I respectfully disagree because the three children are valuable assets and as one ages the biological pleasure of a married couple in sexual coitus does replenish itself. On the other hand it decays by the effluxion of use and tear over time. Both parties have suffered to add to the injury of only one alleged assault which was not reported to the Police upon Petitioner being prevailed upon by her uncle when she was on the way to lodge a complaint, I deem it fair that the marriage between the Petitioner and Respondent is broken down beyond recovery and accordingly it is hereby pronounced as dissolve. The Petitioner is therefore granted 40% of all the properties together with custody of their three children and reasonable access to them on holidays or vacation. Respondent is to cater for their medical, educational and other needs by footing 75% and Respondent 40%. No order as to costs. JUSTICE EMMANUEL BART-PLANGE BREW (HIGH COURT JUDGE) COUNSEL ESTHER YIRBOM FOR PETITIONER RASHID MOHAMMAD MUMUNI FOR RESPONDENT