ALBERT GYAN VRS AWUKU M. LINDA (A4/12/2023) [2025] GHACC 53 (5 May 2025)

24 _**IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON MONDAY THE 5**_ _**TH**_ _**DAY OF MAY 2025 BEFORE HIS. HON. JONATHAN D. NUNOO ESQ. CIRCUIT JUDGE.**_ _**SUIT NO: A4/12/2023**_ **ALBERT GYAN --- PETITIONER** **VRS.** **AWUKU M. LINDA --- RESPONDENT** **JUDGMENT** Parties present. Peter A. Kaba for the Petitioner – present. The Petitioner has brought this petition seeking the following reliefs: 1. That the marriage between them be dissolved 2. That the Hyundai Atos L/back car with registration number GW5328-20 that used to take care of the transport needs of the children should be settled in favour of the Respondent in trust for the children 3. The house which both Petitioner and Respondent built as a family home should continue to be the family home given to the children 4. The Respondent has custody of the children with unrestricted access to the Plaintiff (Sic) 5. Such further order(s) as this Honourable Court may seem fit The fact as stated by the Petitioner upon which his reliefs are anchored are as follows; Petitioner says that the marriage celebrated between the parties has broken has broken down beyond reconciliation. The petitioner alleges inter alia that the respondent does not show any iota of respect to petitioner as the lawful wedded husband and insults him at the least provocation. The Respondent shows unruly behaviour towards his mother even to the extent of insulting her in an audio messages deliberately recorded by her and sent it by electronic postage to him. That Respondent has returned all items used in the customary marriage to his mother with a declaration that she was no longer interested in the marriage Petitioner stated that he involved one Mr Frimpong the Headmaster of Swedru School of Business, their family friend to intervene and address any issue that she might have in the he marriage but she would not entertain Mr.Frimpong’s intervention. Again The Petitioner requested one Ike and a church leader by name Grace to contact her mother to attempt a resolution of any differences that she might have against him but she will not entertain any such intervention. The Petitioner claims that she has behaved in such a manner that the he cannot reasonably be expected to live with her and she has on several occasions blocked his line to prevent him from talking to his children and she only allows him to talk to the children when she need to use the children to request money from him for money to do something. Petitioner states they after diligent efforts by friends and family members has been unable to reconcile their differences. Petitioner avers that since the celebration of the marriage she has treated him cruelly. Petitioner avers further that when he conceived the idea of travelling to Israel for greener pastures they both discussed and agreed on his trip. Petitioner alleges that that before he travelled on 10th August 2018, Respondent was pregnant with their third child and that when he travelled he gained employment immediately so at the end of the same month, August, he sent some money to the Respondent for their upkeep. The Petitioner says that noticing that the distance between their marital home and the school of the was very far, he decided to buy a car to facilitate their movement but she refused to use the car because of mechanical problems identified and the car was returned to the car dealer for a refund of the purchase price and the car dealer refunded GHc4000, 00 out of GHc19,000.00 he had admitted to refund for the car sold to them at GHc22,000.00. The Petitioner says he asked Respondent to keep GHc2000.00 in her accounts to meet any emergencies and use the remaining GHc2000-00 for the children’s school fee but she decided to use the GHc2000.00 in her account to buy a washing machine at a time the children were asked to visit a diagnostic laboratory for samples to be taken to ascertain a medical condition afflicting them at the time and when questioned, her she refused to give any reason for her decision to buy the washing machine. The Petitioner claimed that he called the car dealer to demand payment of the difference only to be informed by the car dealer that he has refunded all the difference to her and she admitted same when he asked her. The Petitioner further claimed that he told Respondent to pay an amount of GHC5000.00 to one Joyce who assisted him with loan to travel to Israel but she refused to give the money with the excuse that she used the money to paint the house. The Petitioner avers that he asked the Respondent to give his mother an amount GHC1000.00 but the she retorted that she will not work hard for others person to enjoy the fruits of her labour and refused to give the money to his mother but later gave the money to a third party to be given to his mother without seeing her. The Petitioner says that he bought another car at a cost of GH35,000.00 to assist the movement of the children to and from school and Respondent to work and they both agreed to convert the car into a commercial vehicle to generate the revenue to support her and the children. Petitioner asserts that his children informed him that the car has broken down but Respondent refused or failed to inform him when he asked her, she confirmed it and after discussion, they agreed that the car should be repaired and its operations managed by Mr Ike Oppong and the car to repair was repaired so the car started working in April 2023. The Petitioner says that after paying the school fees for the children in September, 2021 he asked Respondent to send a snap shot of the receipt to him through Whatsapp platform for his records but she got angry with his request and refused to send the receipts and blocked his line thereby disenabling him to know the bills for January 2022 and subsequent ones for him to pay and it was only on 22nd December, 2022 that she unblocked his line and made the children to call requesting for money to buy Christmas paraphernalia. The Petitioner says that after Respondent had taken delivery of shipment of three boxes of dresses, shoes and other assorted materials, he asked for pictures of the children and after receiving the pictures he called her to ask whether the children were sick because they had reduced in weight and she hanged up the call, followed up with a nine (9) minutes audio insulting him and followed that up the next morning with another 25-munite audio recording insulting his mother, his siblings and his niece and not satisfied, she blocked his line. Petitioner avers that he asked his friend, Ike and a church leader Grace to contact his mother-in-law to advise Respondent of her aggressive behaviour towards him but his mother-in-law refused to receive them to discuss the issue and she rather called his friend Ike to warn him against calling her mother to discuss the issue. The Petitioner further avers that he asked the headmaster of Swedru School of Business called Mr Frimpong, a family member of Petitioner and under whom she works to talk to her to change her behaviour towards him but the Mr Frimpong told him that she seems to be uncomfortable with Petitioner’s family members getting closer to her nucleus family. The Petitioner avers further that one of his cousins by name Hagar, visited the Respondent and the children and she level a number of baseless and unfounded allegations against him to Hager that he has given money to his friend here in Ghana to see a fetish priest to cast spell on her to desist from marrying him and to marry another man so that he can use that as a ground to divorce her. That he is now married to another woman in Israel when she supported him to travel to Israel and he has decided not to take care of her and the children. That he had bought a car to be used as Taxi for her and the car has had an accident and the police officer in charge of the car advised that the car should be sold but he has not responded. Petitioner states that his cousin ask the Respondent to confirm whether he has failed to take care of her and the children but she failed. Petitioner avers after Hagar had listened to the audio message, she decided to help in resolving their differences by calling his mother-in-law to schedule for a meeting but it never materialized and Hagar visited Mr Frimpong at Swedru School of Business and Respondent was impressed upon to call him for a conversation on phone but she retorted that “God forbid for me to call him,” The Petitioner submitted that when his siblings became aware of the contents of the audio message, they also replied with similar insults to her which compelled her mother law to schedule for a meeting on 12th June 2021 to resolve the issues between them and on the meeting day Respondent was accompanied by her mother and they said they were no longer interested in the marriage insisted that the marriage be dissolved The Petitioner stated that the meeting was adjourned to 7th July 2021 and the elders who accompanied Respondent and her mother on that day were surprised to learn that Petitioner had been paying all the school fees and medical bills of Respondent and the children and has bought a taxi for her and built a house for them to stay in. The Petitioner added that the elders advised Respondent to apologise to his siblings but she and her mother drove off from the meeting to his mother house to present the wedding ring, Bible and the bottle of Schnapps to her and declared that they were no longer interested in the marriage and they left. The Petitioner states that in February 2022, he bought three tablets for his children but Respondent frustrated its delivery to the children until 24th December 2022, when one Ike Oppong successfully presented the three tablets and three thousand Ghana cedis (GHC3000.00) to the children on his behalf and concluded that the Respondent has behaved in such a way that the he cannot reasonably be expected to live her as she caused him much humiliation, distress and embarrassment. The Respondent filed an answer to the petition and in paragraph 7 denied paragraphs 7(a) to 7(h) 8 and 9 0f the allegations made in the petition. The Respondent stated that the said Mr Frimpong sided with the Petitioner without listening to her version and persistently harassed her and in the course developed hatred apparently for her compelling her to eventually seek transfer to Winneba SHS. Respondent averred that Petitioner requested her to obtain loan of Ten Thousand Ghana Cedis (GHC10,000.00) for petitioner to embark on the journey with the understanding that contingent upon arrival in Israel he will pay with interest. Respondent stated that she never refused to use the car but the car was a faulty one with several defect and added that all the transaction leading to the purchase of the said car was done by Petitioner or his friend with his authority. Respondent claimed that on and in about 11th December 2018 Petitioner sent her an amount of GHc20,000.00 with an instruction that the money be sent to his friend Ike and when quizzed him, he said it was to be used to buy a car which car she never set her eyes on till the instant suit. Respondent asserted that, a meeting was called to resolve maintenance of the issues in the marriage and that she presented the wedding ring, Bible and schnapps to petitioner’s elders due to unreasonable nagging, insults and assaulting from him and his family members. Respondent admitted that Petitioner’s friend Ike Oppong presented the three computer tablets and three thousand Ghana Cedis (GHC3000.00) to the children as their Christmas gift on behalf of the Petitioner on 24th December 2022. The Respondent relied on these averments and sought the reliefs stated below: 1. That the marriage between the parties be dissolved. 2. An order for custody of the children be granted to her with reasonable access to the Petitioner. 3. An order directed at the Petitioner to pay GHc50,000.00 as alimony. 4. An order directed at the Petitioner to refund the GHc10.000.00 and GHc7000.00 being the loans he requested to contract for petitioner’s travels with interest. 5. An order that the house which both parties built together be sold and the proceeds shared equally. 6. An order directed at the Petitioner to rent for the issues in the marriage upon the dissolution of the marriage. 7. Such orders as this Honourable Court may seem fit. The Petitioner then filed a reply to the answer and cross petition in which he admitted paragraph 5 of the answer to the petition and joined issues with the Respondent virtually on all the assertions in the answer to the petition. The Petitioner stated in his reply he endorses the prayer of Respondent in paragraph 21 (i), and (ii) of the answer but she Respondent is not entitled to any of the reliefs prayed for in Paragraphs 21(iii) (v) and (vi). Petitioner states that the dissolution of the customary marriage was initiated by the Respondent who cannot turn round to demand a relief as such and that remittances to her have been sufficient to be used to pay the loan as was directed. Petitioner concluded that nowhere have they contracted that loan and a stated interest thereof and will put Respondent to strict proof and that the house was built for the comfort of the children and should be reserved for that. The issues set down for trial at the end of the proceedings are as follows 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the Petitioner asked the Respondent to source for a loan for purposes of his travel with interest. 3. Whether or not the Respondent is entitled to compensation and a share of the property. The Petitioner attorney testified without calling any witness and tendered a power of attorney that clothed him with power to handle the matter on behalf of the Petitioner. The Respondent also testified without calling any witness and tendered in evidence Exhibit 1, 2A and 2B. There being a cross petition both parties bear the onus to establish their respective cases in accordance with law. The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. In the case of Ababio V Akwan III (1994-95) GBR 774 the Supreme Court reiterated the point at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” In Ackah v Pergah Transport Ltd. & Others {2010] SCGLR 728 at 738, Adinyira JSC expressed herself thus; “It is a basic principle of the law of 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 and material witnesses, admissible hearsay, documentary and things (often describe 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 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 reasonable than its non- existence. That is the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence, Act 1975 (NRCD 323) Section 1 of Matrimonial Causes Act 1971 (Act 367) provides that either party to a marriage may present petition for divorce to the court and that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation . Section 2 of the same Act provides that for the purposes of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: 2(1) (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 be reasonably be expected to live with the respondent (c) that the respondent have 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 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…; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, have been unable to reconcile their differences. The Petitioner’s is case is that in August 2018 he discussed his intention to travel abroad with the Respondent as any responsible husband is supposed to do and he also had discussion with his friends in regarding how to finance his journey. He alleged that he got money from friends and the Respondent also gave him GHC10,000.00. which he believe was given as a gift to him because as husband and wife, whatever they acquire belongs to both of them, so he did not see why the Respondent should demand for refund. The Petitioner told the court that at the time he was leaving, they have two children and the Respondent was pregnant with their third child and he travelled to Israel and when he got there he gained employment immediately. He stated that at the end of the month in his journey he transferred GHC10,767.00 to the Respondent at the time he did not have documents and he is in foreign Country so he made sure that all the money he earned came to Ghana. The Petitioner further stated that he also raised GHC98,023.63 and transferred the amount to the Respondent for their upkeep and to save portions of that money for their future use because it may not always be possible for him to transfer money since anything can happen. Petitioner asserted that after these transfers of funds, he send three boxes of items to the Respondent, and the Respondent ask what were in the boxes and he told her to inspect the items in the boxes and select what will useful to them and sell the rest. The Petitioner claimed that they were living happily at that time. The Petitioner further claimed that he purchased a vehicle in Ghana to convey the children to school because the car that was conveying the children to school was not reliable and he did that for the family to be happy and comfortable and that the vehicle cost him GHC22,000.00. According to the Petitioner, the Respondent told him that, the mechanic whom she asked to inspect the vehicle said the vehicle was not in good condition so he called the car dealer who sold the car to tell him about what the Respondent has said and the car dealer said that since the vehicle has been sprayed as a taxi and registered he cannot sell the car at the price he sold to them so the dealer agreed to pay GHC19.000.00 instead of the GHC 22,000.00 he paid for the car The Petitioner said he instructed or directed that the refund of the money be made to the Respondent and the car dealer initially paid GHC4,000.00 out of the GHC19,000.00 and he said the money be given to the Respondent to use GHC2,000.00 for school fees of the children and keep the GHC2000.00 and in due course he will tell her what to do with the remaining GHC2000.00. He said further that the car dealer also paid additional GHC2000.00 to the Respondent as directed but the Respondent did not inform him about that GHC2000.00 paid to her. He asserted that after some time told the car dealer that the money has kept long and the car dealer said he has paid all the GHC19,000.00 to the Respondent and that he can verify from her which he did and she confirmed, so he ask why she did not inform him of the money paid to her and because she did not tell him, he has to ask the car dealer about the money. According to the Petitioner he directed the Respondent to go and pay one Joyce GHc5000.00 which they both knew she gave to him when he was about to travel but the Respondent said she will not do it, The Petitioner said he also asked the Respondent to give an amount of GHC1000.00 to his mother but she said she cannot work for others to enjoy and that was where the problem started in the marriage because he thought that he is working hard to maintain his family and for Respondent to give money to his mother only for the her to refuse so that did not go down well with him. The Petitioner said he bought another vehicle at a cost of GHC35000.00 for the Respondent which was used as taxi and to convey the children to and from school. According the Petitioner, before this vehicle was purchased, his friend and the Respondent went to inspect the vehicle and said it was good before it was purchased and that the vehicle was be used to make money and also to convey his family to and from school and that since the vehicle is working as commercial vehicle, she need not lack money. The Petitioner informed the court that the Respondent never accounted to anyone regarding the commercial use of the vehicle, not even a pessewa. The Petitioner claimed that he was of the view that his family was okay because he has provided well for them but the Respondent called to say that they are starving, and he was surprised because he has given them something to make money to take care of themselves. According to the Petitioner he was paying the school and feeding fees of the children and after a while the Respondent called to inform him that the vehicle has been involved in an accident and that the policeman taking care of the car advised that they should sell the vehicle but he refused because she has squandered the refund of the first vehicle he purchased and did not account for it so this vehicle should not be sold but rather be parked Petitioner submitted that he sent three (3) tablets to his children through someone but the Respondent did not collect the tablets when the person sent the tablets to them with the excuse that the children were absent so the person should go and come back when the children are available. The Petitioner asserted that these things made him to request her Respondent to take pictures of receipts of school and feeding fees and send it to him abroad and she asked whether he thought she will squander his money, The Petitioner further asserted that he asked for pictures of his children too and when he saw the pictures, he became upset because the children has grown lean and considering the maintenance he is providing, that is not how the children should be looking and she became upset with what he said and she hanged up the call and made nine minutes audio recording full of insults to him and the next day Respondent made another 25 minutes audio recording full of insults to him and his family and then she blacklisted him so it became difficult to reach her and his family. According to the Petitioner elders of the family, among them was the principal of Swedru Business School spoke to the Respondent but she will not change her attitude. The Petitioner case further is that he sent the audio recording the Respondent made insulting him and his family to his friend and a church member called Grace to contact the Respondent mother to inform her about the issues in their marriage and his friend called her mother to inform her about what her daughter has done but they did not hear from her mother but it appears her mother spoke to her so she called those he sent to her mother to ask them why they are interfering in their marriage. Petitioner stated that his cousin who was very instrumental in the marriage and ask for Respondent’s hand in marriage went to speak with her and entreated her to leave everything and apologize to him but she said ‘over her dead body’. According to the Petitioner the Respondent told his cousin that he has travelled abroad and has given money to someone to send her to ‘juju’ for a spell to be cast on her for her to go in for another man so that he can sack her based on that and that since he travelled he has never given her any money. Petitioner went on to say when his cousin realized that the issues were very serious, she requested to see the Respondent’s mother but when she asked her about her mother, she said her has passed and has no other family member and his cousin told him what she said so he directed his cousin to where she can find Respondent’s mother but when she went she met her absence but his sister in law whom her cousin met said her mother has travelled and her cousin left a message and her phone number for her sister in law to give to her mother to enable her mother to contact her. The Petitioner averred that the Respondent’s mother called her cousin the next day and said she has travelled and she told her all that is going on and added that they have to meet to iron out the issues in the marriage because the children will suffer if there is divorce. Petitioner submitted that Respondent’s mother said she will come but she failed to come after two (2) months so he called his younger sister who is in United Kingdom with her husband to tell her about the insults that the Respondents has rained on his mother. The Petitioner further submitted that a cousin of his who lives in the United States called to speak with her about their issues in the marriage but as soon as the discussion was over she will descend on him. According to the Petitioner he sent the audio to his brother in USA and he also sent it to another brother in Germany so all the siblings became aware of what was going on and so they call their sister and nephew here in Swedru and forwarded the audio to her and they also responded to the audio she made, insulting her as well. The Petitioner attorney told the court that he also had his share of the insult but being a man he did not react because the Respondent had those who can square up with her. Petitioner said further that when Respondent insulted all of them no one spoke about it but as for her when she heard the insults from their side, she told her mother and her mother then contacted his cousin who was instrumental in the marriage for them to meet and settle the issues in the marriage and a date was fixed for that purpose and on the meeting date Respondent, was accompanied by her mother and uncle and his cousin and three elders met them to resolve the issues amicably for peace to prevail. Petitioner alleged that there were elders from the chiefs’ palace at the meeting and the matter was gone into and it was agreed that, that is not how couple should behave but it was tempers that were high so the meeting was postpone Petitioner alleged further that at the next meeting the Respondent was told to apologize to him because she should not have sent the audio full of insults to him who is responsible but she became furious and they left the meeting with her mother and went to see his mother and threw the Ring, Bible and drinks at her with the words “collect the items since you want to marry your son so take him”. Petitioner claim it was his mother they went to see and did what they did so his mother followed to plead with them but they left and his mother called him crying and he was so angry because that is not how they were supposed to go to his mother and his mother asked he (the attorney) to inform the Petitioner but here fused. The Petitioner alleged that Respondent does not respect anyone in his family except his cousin who took her hand in marriage but later she had issues with her as well. and he the attorney refused to call Petitioner to inform him about what has transpired because his principal sometimes support the Respondent and because it is Petitioner’s issues he want him to handle it. The Petitioner concluded that after some months Petitioner called to say that he is now ready to divorce since the Respondent has submitted the Ring, Bible and drink. So I engaged a lawyer for him to help them file this petition. He claimed the Petitioner is the last child among them so the Respondent should be submissive to the family members since she is married into the family and not to lord over them. The case of the Respondent is that she got married to Petitioner on 5th and 6th August 2011 and they have three children namely Kelvin Nshraba Gyan, Jeremy Owusu Gyan and Solomon Abeiku Gyan and they are 11, 10 and 5 years respectively, and agreement between them was that they were not to stay together in the course of the marriage because she works at Cape Coast, According to her they have a building project whereby the land was bought by the two of them, they shared the cost of the land equally and she initiated the building and her husband supported with GHC120,000.00 only and the electricity, water were done by her. It was her case that because she stayed at Cape Coast, the money she used for the building was sent by her to her husband through her accounts at Ghana Commercial Bank (GCB) Swedru branch with the aid of ATM card and through mobile money transfer. She submitted that she sent the money through electronic means (mobile money) but was unable to have a print out of the money of the money she sent via mobile money through her phone to the Petitioner so merchant says he cannot print the details for her unless her but she has bank records which her husband himself recorded as and when he withdrew the money from her accounts. According to the Respondent before the Petitioner travelled they purchased another plot of land which is different from the one they have put the building on and that piece of land is located at Pipe Tank close to Pentecost Preparatory School and that the documents were left in the hands of his friend called Ike for their business set up but it was registered in the Petitioner’s name alone and he build an apartment on it for his mother and the rest for rent for himself alone. She stated that upon a request for the documents from his friend Ike, Ike response was that everything was done according to the Petitioner’s directions. Determination of the issues will be done having the laws as set out above in mind The issues above will be determined with the law stated above in focus Issue (1) whether or not the marriage has broken down beyond reconciliation? . The Petitioner said that it was the Respondent who initiated who initiated the dissolution of their customary law marriage by sending the Bible, Ring and the Schnapps to his mother and said she was not interested in the marriage anymore which the Respondent admitted and said that the reason why she did that was due to unreasonable nagging, insults and assaulting from Petitioner and his family members. Again the Petitioner asserted that the Respondent made audio recording full of insults to him, the mother and his siblings and they also retaliated in equal measure. This was the evidence elicited from Petitioner’s attorney under cross examination Q: I suggest to you that on 17th March 2021 your sister Hagar called my mother to come for a discussion. A: Correct. Q: The date for their meeting was 17th March 2021, my mother waited up to 19th March 2021 but Hagar did not show up, I suggest that to you. A: That is not true, Hagar went to look for your mother but she met her absence and met Respondent’s sister who said the mother is not available so Hagar took her mother’s phone number so when Hagar returned to Ghana she called Respondent mother and told her about the issues in the marriage and the need to reconcile because of the children but the mother said she does not have any idea of what is going on and your mother said she is away and that when she comes she will call for them to meet and resolve the issues. Hagar looked forward for your mother but she did not show up and when Hagar called your mother she did not answer and that is when the audio full of insults to our family emerged, the Petitioner did not want the audio to come out because that will escalate matters but when my sister heard of the audio, my sisters also made a recording and insulted the Respondent very well and the Respondent told the mother about it and the mother called for a meeting and it was during this meeting that they said they are not interested in the marriage. Q: I suggest to you that your sister Hagar refusal to come for the discussion with my mother made it clear to my mother that your family has decided for the Petitioner. A: That is not true. Q: Hagar also made it known to us that the Petitioner has gotten married and having a peaceful life abroad. A: That it not true. Q: I suggest to you that after this information by Hagar two (2) days later five different audios from five members of your family full of insults to me and my mother. A: What you are saying is not correct, the audio my sisters did was in response to your audio full of insults to my three (3) sisters.You even insulted me in your audio but I am a man so I did not mind you but my three sisters who did the audio and they also insulted you in retaliation. Q: I suggest to you that an official meeting was conveyed on 7th July 2021 to officially inform me that the Petitioner is not interested in the marriage and that he is married abroad. A: That is not true, there were two meetings I spoke about when Hagar came to see you, you asked Hagar whether she is not aware that her brother is married and further Petitioner has given money to someone to go to juju man to cast a spell on her to go and fornicate so that he will stand on it to divorce her. The Respondent has made her mind not to marry the Petitioner again and she is not interested in the reconciliation. During the first meeting there was misunderstanding so the meeting was postponed. During the second meeting it came out that the allegation made by the Respondent that she was not being maintained is not true so she should apologize to the Petitioner that is when the Respondent and her mother stormed out of the meeting and they later left and sent their dowry and dumped it on my mother. Q: I suggest to you that during the meeting, the insults and the threat from your sisters that made us sent the customary marriage items to your mother. A: What you are saying is not true, it was because of the insults you rain on your husband and the family that was why my sisters also made the audio insulting you in return. It’s not the first time you have insulted my mother and you brought your uncle and your mother to apologize and in the audio the Respondent was heard saying that who is your mother no one is coming to apologize to her again, so that was why my sisters also did what they did. Q: I suggest to you that I have never insulted your mother before but rather I have been taking good care of her and her children. A: That is not true. Q: I suggest to you that upon reaching your mother’s house she thanked me happily and said that this is what she has being waiting for and that she never wanted her son to marry an Ewe woman. Petitioner’s siblings were all happy. A: That is not true. Q: I suggest to you that your elder sister at Germany also sent me an audio saying that this was what all of them were looking forward to and that they never supported the marriage and that there is no sense for a fanti man to marry witch ewe woman and a whole lot of insults. A: I said three of my sister’s made audio and insulted you in return. You have been insulting our mother and my sister in Germany also has a right to insult you the Petitioner has never insulted your mother before my sister has every right to insult you because of your conduct for you to see that she is not scared of you. This was the evidence the Respondent gave regarding the customary marriage that was said to have been initiated by her Q: You are an Ewe married to a Fanti, correct? A: I am not a full Ewe I am half Fanti from Cape Coast Abora and it my father who is an Ewe. Q: Tell the Court when you and your mother and uncles returned the bottle of schnapps, the Ring and the Bible to the parents of the Petitioner, does that amount to dissolution of the marriage? A: Those items were sent by me and not by any of my family members upon a death threat from the Petitioner’s family. I have all the evidence of the death threat made on audio not the audio alone but they stormed my house in an attempt of beating me and dragging me from the house on the reason that the house belongs to their brother who is my husband and I have all the evidence in pictures with me here, the Attorney also sent a message through his elder sister Hagar that he will kill me before he will be satisfied. He admitted this in cross examination and the Court advised him. Q: These dead threats did you report this to the police. A: Yes. Q: Were the people who threatened you arrested? A: We visited their various residents and they were nowhere to be found and the officer Amankwa advised that the Petitioner should be talk to since he said he gave them all information about me, the officer tried reaching the Petitioner with different lines and the crime officer also tried he refused to answer any of the calls. The Respondent suggested that the by the Petitioner assertion that she recorded an audio in which he said she insulted her mother in law was untrue is false and that the audio was in respect of the money petitioner was demanding from her and it was about the vehicle and not insults. According to Respondent the audio was about how her mother- in -law, her children and Petitioner insults her, calling her a prostitute and that her mother in law insults her as a prostitute she even insulted her children as well. The evidence adduced above speaks for itself that the marriage between the parties have broken down beyond reconciliation. There is evidence that the customary marriage between the parties have been dissolved which is a strong evidence of a collapsed marriage which goes to show that the marriage between the parties has broken down beyond reconciliation. Though the audio recordings were not tendered in evidence it appears to me that per the evidence on record the acrimony between the parties and their families have gotten to levels that can be described as hatred. It can be inferred that the parties after a diligent efforts have not been able to resolve their differences and it is the reason why the marriage can be said to have broken down beyond reconciliation and it must be dissolved, Whether or not the Petitioner asked the Respondent to source for a loan for purposes of his travel with interest. The Petitioner did not dispute the fact that the Respondent gave him GHc10,000.00 for his travel but his beef was that he did not know the Respondent will demand the money with interest. The Petitioner in the course of the proceedings admitted to pay the GHC 10,000 which he was ordered to pay. My view on the issue is that if the marriage between the parties has not fallen on rocks, I do not think this issue of repayment of the money and interest will be handled in the manner that it was handled. The Petitioner has stated that as a couple whatever the acquire belongs to them so it was because of the challenges the parties started experiencing in the marriage which they were not able to handle well that brought this issue of refund and interest in the picture otherwise this issue will not arise in the first place. After all the Petitioner that they were having a cordial relationship before he travelled and at the time the Respondent was pregnant with their third child. The law is that marital expenses cannot be handle ads though it was commerce. The evidence adduced which shows that the parties started experiencing misunderstanding in the marriage after the Petitioner has left the shores of Ghana because the Petitioner Attorney was supporting the Respondent so he wanted him to handle his issues himself so what changed? This were excerpts of the evidence adduced when Petitioner was cross examined. Q: You said the Petitioner transferred an amount of GHC10,000.00 plus some cedis, do you still stand by that? A: Yes. Q: I suggest to you that there was no such money like that, the money sent was to offset a loan he has obtained from Ghana Commercial Bank. A: The money was not sent to pay a loan, if the money is to pay a loan at GCB who obtained that loan the money I stated was sent to you. Q: I suggest to you that the GHC98,000.00 that you said was sent to me was false no such money was sent to me. A: What I said is true and there are document to support it. Q: I suggest to you that such amount was not sent in bulk that is GHC98,000.00 the money sent was monthly remittance and that was meant for maintenance and for his family as well as some for payment of loans and church tithes and offering. A: I did not say the amount of GHC98,000.00 was to you in bulk but it was sent in bits and pieces for example GHC10,000.00 and so on and that came to GHC98,000.00 and the money was not meant for the purposes you mentioned ... Q: You said GHC98,000.00 plus that you said was sent to me to use by myself and children is not true. A: It is true. Q: I suggest to you that the money was sent on monthly basis but not in bulk. A: That is correct. Q: Out of the GHC98,000.00 plus most of them was used to settle debt at GCB before you travelled. A: That is true but you did not spend more than GHC3000.00 and there is evidence to that documentary evidence. Q: Some of the monthly remittance was used to pay for a flight ticket for your brother to enable him travel from Dubai to Ghana, I have the evidence. A: That is not true if I have borrowed money and I gave you money to repay and you have borrowed your money and could not repay what are you saying. Q: I suggest to you that part of the GHC98,000.00 was used to take care of your mother and part of it was use to refresh the people who attended the church member’s funeral programe. A: That is not true, are you saying that you took a loan for me in your name and I have given you money, you could not use the money to repay the loan but you can use it for other purpose, that cannot be true. Q: Out of GHC98,000.00 plus that you spoke about I am to use part to renovate a room in our house to be occupied by your brother. A: That is true some of the money was used for tiles and plastering in a single, room that is all. Q: I suggest to you that I deposit monies in my husband’s momo account to be used to pay your nephew’s fees at Kwame Nkrumah University of science and Technology. A: That is not true because my brother, your husband did not tell me anything about that. Q: My husband authorized me to give money to a member of his church who is spiritual father out of this monthly maintenance, I suggest that to you. A: That is not true you were not even able to give our mother money that my brother ask you to give out, you can give stranger money that cannot be true. Q: From November 2018 to November 2019 out of the GHC98,000.00 plus the remittance in this period is GHC150,00 for that whole year. A: That is not true. …. As stated it was after the Petitioner had travelled that they started having issues in their marriage and all their troubles began though it was not clear what brought about squabbles, one thing was clear that there was too much interference on the part of Petitioner’s family and friend in their marriage because the Petitioner was remitting the Respondent when he got to his destination and later decided to stop because of the vehicle he purchased to be used for commerce which exacerbated the already soured relationship. The parties alleged that they have evidence to support the certain claims regarding how some of the remittances sent to Respondent by the Petitioner was expended but no such evidence was adduced. Be that as it may I do not think there should be any interest on the money because no evidence was led that suggest that the money was a loan and therefore it was attracting interest which ought to be borne by the Respondent. Whether or not the Respondent is entitled to compensation and a share of the property. It is stated by Date-Bah JSC in Patience Arthur V Mosses Arthur civil Appeal No J4/19/2013 dated 26th July, 2013, affirming the principle enunciated in the case of Mensah V Mensah [2012] 46 GMJ2 that marital property to be understood as property acquired by the spouses during the marriage irrespective of whether the spouse has made contribution to its acquisition. Arthur V Arthur supra accordingly, states that in the light of the ratio decidendi in Mensah V Mensah supra it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage. Article 22 (2) (b) of the 1992 constitution provides that: (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It has been held by Date –Bah JSC in Boafo v. Boafo [2005-2006] SCGLR that equality principle laid down in Mensah v Mensah [1998-99] SCGLR may be waived if in the circumstances of a particular case, the equities of the case would demand otherwise. See also Christiana Quartson V Pious Pope Quartson supra. See also the majority decision in Agyei v. Agyei J4 6 of 2021 (2021) GHASC 5 21 April 2021) From the evidence adduced there is no dispute that the property was acquired during the subsistence of the marriage . This issue of the property should not detain the Court unduly because the Petitioner has stated that the property should be preserved for the issues of the marriage but the Respondent in her answer and cross petition wanted the property to be shared between them but later altered her stand and agreed that the property be preserved for the issues of the marriage so that was what the Court decided. However, the Respondent also adduced evidence to the fact that there was another land that she purchased which the Petitioner has registered in his sole name and enjoying from it alone but this was not part of her case initially and the evidence tendered in support of that claim leaves a lot to be desired to say the least. This was the excerpts of the evidence elicited from the Respondent under cross examination in support of her claim in respect of the building she alluded to. Q: In your previous statement to the Court you referred to a house that you and your husband has put up or are putting up, I put it to you that that land was purchased jointly by the Petitioner, his brother Ebenezer who is in London and the sister Bernice who is in Germany to build that house as a surprise to their mother at her 80th birth day, your hand is not in that house I put it to you. A: What you have said is not true, I acquire a loan of GHC12,000.00 from GCB to the Petitioner to purchase a piece of land for my business. The land was bought and my husband took me to the site due to his travelling, he handed over the documentation to the friend Ike because I was staying at Cape Coast when the Petitioner arrived in Israel safely, I asked about the document, he told me everything was in the hands of Ike. Several attempts to get the document from Ike revealed that my husband asked Ike to register the land in his name upon a visit to the site a house was built on it for the mother and some of the relatives were staying there. The rest of the land was used to put up four apartments chamber and hall for rent in acquiring water service that particular house, he used the registered document which contains my husband’s name , his friend Ike and his girlfriend called Joyce Aikins, that land on which this particular house is situated belongs to me. The building was secretly put up by my husband’s friend Ike who was the supervisor of the building. Q: I put it to you that this particular land which you have made a long story is not the land your husband and his siblings bought to put up the building for their mother. A: That land belongs to me and I have all the evidence here concerning the money and the land. Q: I also put it to you that Ebenezer Gyan the brother of your husband took out a loan of twenty thousand pounds from Royals bank in Leeds in U.K. for the purchase of the joint land with his siblings to put up a house for their mother. A: That is not true Ebenezer Gyan is putting up a house for his mother at the adjacent the junction of the Circuit Court behind Golden Star FM for his mother due to the delay of that house, my husband secretly put up the building on my land at Pipe Tank with the help of his friend at Pipe Tank before the divorce Petition over our matrimonial home documents was taken by a friend of my husband Mr. Turkson. When the Petition was served on me and when I request the documents from the Petitioner he claimed that the matrimonial home and the land which the house is built on belongs to Ebenezer Gyan the senior brother at U.K. Q: I put it to you that you have been very unfair to the Court by telling the truth. A: Such documents are still with the friend send by my husband, due to my absence in Swedru I kept all properties that I acquire in the hands of my husband with trust which he has started claiming ownership and changing documents for himself and the family and I have all the evidence here. The Respondent claims she has took a loan of GHC12000.00 from GCB to purchase the land in issue but she did not tender any such evidence in support of that claim. At least it should not be hard for the Respondent to at least call evidence in support of her assertion that she borrowed money from GCB to purchase the land and how the land was purchased and from whom the land was purchased. The law is trite that once the Respondent is able to produce strong evidence that she is acquired the land she was talking about with her own money she must succeed in her claims but this is not so in this case. It was held in Boakye v Asamoah [1974] 1GLR 38 holing 4 in the head notes as follows:- The plaintiffs and the defendant jointly raised a loan of ¢3,000. 00 for which each party mortgaged his cocoa farm to the common creditor. The loan was equally shared and they became jointly liable for its repayment. Sometime later, the creditor accepted from the parties ¢2,920. 00 in full satisfaction of the loan. The plaintiffs contending that the defendant had paid only ¢120.00 of the repayments whilst they had paid the defendant's due share of ¢800.00, sued claiming that amount by way of indemnity. At the trial, the plaintiffs merely rested on the evidence of the common creditor who averred that the defendant had paid to him only ¢120.00 being the proceeds from the defendant's mortgaged farm. In proof, the creditor tendered receipts covering only ¢68. 60. The evidence also showed that ¢710. 00 out of the money being claimed represented the commuted monetary value of labour services rendered by the plaintiffs on behalf of the common creditor, without the knowledge of the defendant. After the plaintiffs had closed their case, the defendant made a submission of no case on the grounds that the evidence was unsatisfactory and unreliable. In his ruling, the trial magistrate overruled the submission, denied to the defendant his right to call further evidence even though he had not been put to his election, held that the onus was on him to prove that he had paid more than ¢120.00 and therefore gave judgment for the plaintiffs. On appeal, Held, allowing the appeal: (4) The well-known legal or persuasive burden of proof was the burden borne by the party who would lose the issue unless he satisfied the tribunal of fact to the appropriate degree of conviction. The plaintiffs therefore had the burden of producing sufficient evidence to justify a finding that the defendant paid only ¢120.00; their reliance on the bare evidence of the creditor was insufficient. Consequently, the trial magistrate had palpably erred in ruling that the onus was on the defendant to prove that he had paid more than ¢120.00 because it amounted to calling on the defendant to prove a negative fact which was peculiarly within the knowledge of the plaintiffs' witness. See Dicta of Bayley J. in R. v. Turner (1816) 5 M. & S. 206 at p. 211 and of Ollennu J. in Majolagbe v. Larbi [1959] G.L.R. 190 at p. 192 d. The exhibits tendered by the Respondent were was unrelated to this particular land she spoke about and in addition the evidence was self -serving and no weight can be placed on it to warrant a relief that these hollow pieces of evidence was intended for and I so hold In considering the issue of compensation I think the Respondent deserves to be compensated because I do not think it was her fault that the marriage has collapsed. The Petitioner contends that they were living happily before he travelled at the time the Respondent was pregnant with their third child. The Respondent said she has been living with all the children in Cape Coast whilst the Respondent resides here in Swedru. This piece of evidence was not challenged by the Petitioner which adds to the evidence which shows that they were living cordially before the Petitioner travelled so the question remains what transpired for them to be having these misunderstanding that has culminated in this Petition and cross petition? Could it be has Respondent has alluded to, that the Petitioner is living with another woman in Israel as his wife? What brought about the acrimony? Is it that the Respondent was disrespectful to the Petitioner and his family as Petitioner wanted the Court to believe or it was rather the Petitioner and his family that wanted the marriage to end? From the evidence I do not think the Respondent can be blame for sending the items used for the customary marriage in other words the Respondent cannot be blame for bringing the customary marriage to an end because if she wanted the marriage to come to an end she could have taken that step when the Petitioner was in Ghana and not to wait for him to travel before. This was a wife who aided the Petitioner financially to enable him travel abroad only to wake up one day and decided to dissolve her marriage without any cause for alarm, such an action by any wife will be irrational to say the least. I do not think that if all was well in the marriage, the Respondent will take such a step, I am inclined to believe the story of the Respondent that it was the way the Petitioner and her family treated the Respondent that made her to bring the marriage to an abrupt end and it does not lie in Petitioner’s mouth to say that the dissolution of the marriage should be attributed to the Respondent. There is ample evidence before this Court that the Petitioner is the one who wanted the marriage to end and he cannot escape liability for so doing. I therefore order the Petitioner to pay and amount of Ghc25.000.00 as compensation to the Respondent. It is hereby decreed that the marriage between the parties has broken down beyond reconciliation and it must be dissolved and it dissolved. Respondent is granted custody to the issues of the marriage (since she is the one living with issues of the marriage since co habitation came to an end) with reasonable access to the Petitioner. The Petitioner is to be responsible for the following; feeding fees, school fees, supply text books, exercise books and other stationaries for the children. The uniforms, and other clothing to be used by the children are to be borne by the parties equally. The Petitioner is to pay GHC1500.00 as monthly maintenance allowance for their upkeep and pay provide medical care and any other necessaries of life. The Respondent is given the Hyundai Atos L/back vehicle with registration no GW3506-20 in trust for the children to be used for their transportation. The matrimonial property is declared as marital property jointly acquired by the parties and it is to preserved for the issues of the marriage between the parties in their petition. In the even that this preservation of the matrimonial property for issues in the marriage between the parties cannot be achieved, the property should be share equally between the parties equally and if it becomes necessary for the property to be sold, the respondent be given first option to buy the petitioner out if she fails the petitioner get the nod to buy the Respondent out if they both fail, the property be valued and sold and the proceeds shared equally between the parties. No order as cost. Peter A. Kaba for the Petitioner. **(SGD)** H/H JONATHAN DESMOND NUNOO (CIRCUIT JUDGE).