Kesson-Smith v Osei (C5/58/2024) [2025] GHACC 63 (19 February 2025)

IN THE CIRCUIT COURT “11” HELD IN ACCRA ON WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025, BEFORE HIS HONOUR BASILIA ADJEI-TAWIAH, CIRCUIT COURT JUDGE SUIT NO. C5/58/2024 MS. C. A. KESSON-SMITH PETITIONER VS MR. S. A. P. OSEI RESPONDENT ============================================================================= JUDGMENT ============================================================================= Introduction Based on the peculiar facts of this case I shall commence this judgment with the words of Justice Robert H. Jackson (Justice of the Supreme Court of the United States): “If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom. The above statement was made by the learned judge as part of his dissenting opinion in the case of Estin v. Estin, 334 U.S. 541, 553 (1948) whiles commenting on the uncertainties surrounding the marital status of many people living in the United States and how that can affect their fundamental rights and relations such as the lawfulness of their cohabitation, their children’s legitimacy, property etc. Background By a petition filed on 25th September 2023, the Petitioner herein petitioned this Court for the annulment of the parties’ 25-year-old marriage on grounds that the marriage is void 1 in law. Together, the parties have two daughters aged 24 and 13 years respectively. The relevant portions of the petition specifically paragraph 8, dealing with particulars of the void marriage is reproduced here: 8. The Parties have recently discovered the following facts which affect the validity of the marriage: i. The venue or place at which the marriage was celebrated was not licensed for the celebration of marriages at the time of its celebration ii. The place where the marriage was celebrated was neither the office of a registrar of marriages nor was the said place authorized by the Registrar’s Special Licence for the purposes of celebrating the marriage at the time iii. The said marriage was celebrated without Special Licence, and the necessary banns were not published as required by the law iv. The Minister who performed the solemnization of the marriage was not a licensed marriage officer at the time of the marriage and the parties, after diligent efforts, have found no evidence to confirm that he had subsequently been licensed as such v. It is the Petitioner’s case that the marriage contracted between them has long broken down beyond reconciliation and the parties can no longer live together as man and wife under one roof. The Petitioner has prayed this Court for an annulment of the ordinance marriage celebrated between the parties to be declared void ab initio; that the residential home at Cantonments in Accra and office building at Dzorwulu housing the Petitioner’s law office be settled on the Petitioner; that the parties’ residential property at Senchi in the Eastern Region together with the parcels of land be settled on the Respondent; that joint custody of the minor child of the marriage be granted to both the Petitioner and Respondent. 2 When the Respondent could not be served personally by the Court Bailiff with the Petition, the Court Notes and Hearing Notices to appear in Court, an order for substituted service was granted to serve the Respondent with the processes by posting copies at his last known residence being at Solace Gardens, Tudjikope, Senchi Riverside and copies sent through his WhatsApp numbers and email address provided to the Court. The Respondent neither entered Appearance nor delivered an Answer to the petition. The Suit was eventually set down for trial and parties ordered to file witness statements with a further order that the Respondent be served with Court Notes and Hearing Notice by substituted service to attend Case Management Conference. The Respondent was duly served through his WhatsApp number and email address but filed none. On the return date for the Case Management Conference, the Respondent had still not filed a response to the petition, or his witness statement as ordered by the Court. A trial date was fixed with notice to the Respondent, but he never attended any of the court sittings to testify or subject the evidence of the Petitioner to cross-examination. The Petitioner’s Case The Petitioner who testified through her lawful attorney, Yvonne Dey intimated to the Court that the Parties married under the Marriages Act 1884-1985 (CAP 127) on 18th December 1998. She tendered into evidence a Power of Attorney marked as Exhibit ‘A’ and a copy of the parties’ Marriage Certificate marked as Exhibit ‘B’. She stated that after the marriage, the parties cohabited at Tema, Dzorwulu, Adjiringanor and Cantonments in Accra and had two (2) children Krapa Pokua Osei aged 24 and Sanaa Nshren Osei aged 13. Further, that the parties have lived as man and wife for twenty-five (25) years prior to the filing of this petition and that a recent discovery revealed that the parties’ marriage is 3 void in law due to the non-existence of certain facts that make the celebration of an ordinance marriage valid. The relevant portions of the Petitioner’s witness statement are reproduced here: 10. The Petitioner has also recently discovered that the venue for the celebration of the marriage was not licensed at the time of the marriage. The said venue was neither the office of a Registrar of marriage nor was it authorized by the Registrar’s special license for the purposes of celebrating the marriage. 11. Further, the Petitioner discovered that the officiating Minister, Bishop Ben Anum (referred to in other parts of this judgment as Rev Ben Anum) of the Christ Action Faith Ministries (Action Chapel International) Spintex Road, Accra was also not a licensed marriage officer at the time of the marriage. 12. Bishop Ben Anum was significantly absent from the list of ministers of the church appointed as marriage officers. A copy of the Ghana Gazette dated Friday 11th April, 2003 publishing the first ever list of marriage Officers of the Christian Action Faith Ministries International will be tendered into evidence as Exhibit C. 13. The Petitioner also found out that the necessary banns were not published prior to the marriage ceremony as required by law. According to the Petitioner, the families of both Petitioner and Respondent have already performed the necessary rites to dissolve the marriage under customary law and the Parties have agreed to have joint custody of the minor child of the marriage. Additionally, they have agreed that the Petitioner retains ownership of the residential home at Cantonments in Accra and the building housing the Petitioner’s office at Dzowulu whilst the parties’ residential property and parcels of land located at Senchi in the Eastern Region be settled on the Respondent. 4 The administrative errors alluded to by the Petitioner, if proven, would constitute very fundamental defects to the celebration of the marriage between the parties. The Respondent having failed to deliver an Answer to the Petition and/or appear in Court to cross-examine the Petitioner, evidence of the Petitioner stands uncontroverted by the Respondent but same would be examined against the relevant laws governing valid marriages in Ghana. I shall proceed to consider the formal and essential requirements for a valid ordinance marriage under Part III of the Marriages Act 1884-1985 in Ghana. In Ghana, the legal framework on marriage is regulated by the Marriages Act, 1884- 1985(Cap 127) and Matrimonial Causes Act, 1971(Act 367). Part III of Cap 127 spells out the requirements to satisfy by a party who intends to celebrate an ordinance marriage. Among the formal requirements to satisfy are: (i) Registration (ii) Notices and Publication of Banns (iii) Celebration of the marriage in a licensed place of worship or Registrar’s office (iv) Celebration of marriage in the presence of at least two (2) witnesses (v) Solemnization of marriage must be under the authority of a registrar’s certificate or marriage officers’ certificate or a special license from the registrar. The essential requirements to satisfy include: I. Both parties must be at least 18 years of age II. Consent where either party is a minor (below 18 years) Void and Voidable Marriages 5 Lord Greene in De Reneville v. De Reneville (1948) 1 ALL ER56-60, CA, offers a distinction between Void and Voidable Marriages. In the words of the Learned Judge: “Void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties without the necessity of any decree annulling it: voidable marriage is one that will be regarded by every court as valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction”. This would mean that the annulment of a Void or Voidable Marriage, like Divorce, changes the party’s status by judicial decree. Whatever the theoretical differences between them are, both are means of terminating a marriage that has broken down. However, whereas divorce is retroactive in effect, the parties are still regarded as having been husband and wife up to the time when the decree was made absolute. An annulment is retrospective, effectively erasing its existence from the legal standpoint therefore Void marriage is treated as if it never happened whilst Voidable marriage is valid until declared otherwise by the court. The legal formality under which a marriage could be declared void is succinctly captured under the Marriages Act 1884-1985 CAP 127. For the avoidance of doubt, I will copiously state the said legal formality which is captured in Section 74 of CAP 127: Invalid Marriages 74. Marriage with deceased wife’s sister or niece lawful (1) A marriage may be lawfully celebrated under this Part between a man and the sister or niece of the deceased wife, but a marriage is not valid, (a) which if celebrated in England, would be void on the ground of kindred or affinity, or 6 (b) where either of the parties, at the time of the celebration of the marriage, is married under the applicable customary law to a person other than the person with whom the marriage is celebrated. (2) A marriage is void if both parties knowingly and wilfully acquiesce in its celebration in a place other than the office of a registrar of marriages, or a licensed place of worship, except where authorized by the Registrar’s license, or under a false name or names, or without the registrar’s certificate of notice, or the marriage officer’s certificates, or one certificate when sufficient or license duly issued, or by a person who is not a recognised minister of a religious denomination or body, or a registrar of marriages.(emphasis mine) Additionally, Section 13 of The Matrimonial Causes Act 1971 (Act 367) makes provision for conditions upon which a party may present a petition for annulment: Section 13—Nullity. (1) Any person may present a petition to the court for a decree annulling his marriage on the ground that it is by law void or voidable (in this Act referred to as "a decree of nullity”). (2) In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall, subject to subsection (3), be voidable on the ground— (a) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; or (b) that at the time of the marriage either party to the marriage was of unsound mind or subject to recurrent attacks of insanity; or (c) that the respondent was at the time of the marriage pregnant by some person other than the petitioner; or 7 (d) that the respondent was at the time of the marriage suffering from an incurable venereal disease in a communicable form. (3) The court shall not grant a decree of nullity in a case falling within paragraphs (b), (c) or (d) of subsection (2) unless it is satisfied that— (a) the petitioner was at the time of the marriage ignorant of the facts making the marriage voidable; and (b) proceedings were instituted within a year from the date of the marriage; and (c) marital intercourse with the consent of the petitioner has not taken place since the petitioner discovered the existence of the facts making the marriage voidable. (4) Nothing in this section shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted. A combined effect of the above provisions lay the foundation upon which a party may invoke the jurisdiction of the Court to make a determination and consequential pronouncements on a Void or Voidable Marriage. Thus, in the case of GENFI II V GENFI II [1964] GLR 548, upon a petition presented to the Court, SOWAH J as he then was, had no difficulty declaring a marriage solemnized under the Marriage Ordinance Cap 127 null and void due to a prior existing customary marriage between Petitioner and another woman. In the more recent case of Asamoah Gyan v Gifty Gyan (2023) DLHC16615, the High Court, upon a petition presented to it, made a finding that the Petitioner was entitled to a Decree of Nullity to annul the marriage between himself and the Respondent, pursuant to Section 13 of Matrimonial Causes Act on grounds of having been deceived into marrying the Respondent who had misrepresented to the Petitioner that she was a 8 spinster at the time of the marriage when in fact she was already married to another under the Marriages Act. I have no doubt in my mind that the Petitioner herein has properly invoked the jurisdiction of this Court to make a determination of the validity of the marriage celebrated between herself and the Respondent on 18th December 1998 under the Marriage Ordinance (CAP 127). Standard of Proof The standard of proof of a party in a civil suit who alleges a fact which is denied, is one on a balance or preponderance of probabilities. This therefore requires a party making assertions to adduce evidence in proof of the said allegations, such that the court is convinced that the existence of the facts he or she alleges are more probable than their non-existence. In Majolagbe v. Larbi & Others (1959) GLR 190 per Ollenu J (as he then was), it was held that Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g., by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” This burden of producing evidence is not static and may shift from one party to the other as provided for in Section 11(1) of the Evidence Act 1975 (NRCD 323) that: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue”. This position of the law was amply explained by this Court in the case of IN RE ASHALEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS [2003-2004] SCGLR 400, 425-426. 9 The Supreme Court speaking through His Lordship Brobbey JSC held as follows: “The effect of section 11 (1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court must make a determination of fact, or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence the court will be left with no choice but evaluate the entire case on the basis of the evidence before the court, which may turn out to be the only evidence of the plaintiff. (emphasis mine).” If the court chooses to believe the only evidence on record the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant. Evidence before this Court Although the current petition is uncontested which leaves the Court with only the testimony and evidence of the Petitioner to arrive at a decision, it behooves the Court to satisfy itself from the facts and evidence presented to it that the Petitioner has made a valid case for annulment of her 25-year-old marriage to the Respondent under our relevant laws. 10 Now, it is the Petitioner’s contention that the marriage celebrated between herself and the Respondent on 18th December 1998 is void on three main grounds, namely: the venue at which the marriage was celebrated was neither the office of the Registrar of marriages nor was it authorized by the Registrar’s special license. Further, that the necessary banns were not published prior to the celebration of the marriage and lastly, that the officiating minister, Bishop Ben Annum of the Christian Action Faith Ministries (Action Chapel International) was not a licensed marriage officer. In support of the above assertions, the Petitioner tendered Exhibit ‘B’ which is the marriage certificate evidencing the marriage celebrated between the parties duly signed by a Rev Ben Annum as the officiating minister. Additionally, the Petitioner tendered Exhibit ‘C’ which is a copy of the Ghana Gazette dated Friday, 11th April 2003 described by the Petitioner as the first ever list of Marriage Officers of the Christian Action Faith Ministries (Action Chapel International). On the topmost part of Exhibit ‘C’ is stated... “Under the provisions of section 6 of the Marriage Ordinance (Cap 127) as amended by the Ministers Functions Instrument 1971 (L.I. 707) the following Ministers of Religion are hereby appointed as Marriage Officers for the Christian Action Faith Ministries International. KIA Accra.” The document goes on to list up to 26 names of religious ministers appointed and gazetted as marriage officers of the Christian Action Faith Ministries International. The name Rev Ben Anum is not on the list of Exhibit ‘C’. It is worthy to note that the venue for the celebration of the marriage is captured on Exhibit B as Action Chapel of Christian Action Faith Ministries referred to in parts of the pleadings as Christ Action Faith Ministries (Action Chapel International). It is also worthy of mention that, the Petitioner presented no other evidence to this Court in support of the non-publication of wedding banns and unlicensed venue. I shall 11 therefore focus on the relevant statutory provisions in respect of a marriage celebrated by an unlicensed minister/officer in respect of which the Petitioner tendered Exhibit ‘C’. Section 74(2) of the Marriages Act, CAP 127 provides: A marriage is void if both parties knowingly and wilfully acquiesce in its celebration in a place other than the office of a registrar of marriages, or a licensed place of worship, except where authorized by the Registrar’s licence, or under a false name or names, or without the registrar’s certificate of notice, or the marriage officer’s certificates, or one certificate when sufficient or licence duly issued, or by a person who is not a recognised minister of a religious denomination or body, or a registrar of marriages.(emphasis mine) Section 38 of CAP 127 provides that, a marriage officer shall be appointed by the Minister of Interior and such appointment or cancellation of same shall take effect upon publication in the Gazette. Section 41 of CAP 127 provides 41. Authorities for solemnization of marriage A marriage may be solemnized under the authority of (a) a registrar’s certificate, (b) marriage officers’ certificate, or (c) a special licence from the Registrar. The combined effect of the above provisions is that, for a marriage to be valid under Cap 127, same ought to be solemnized by a licensed religious minister/officer of a religious denomination or body. 12 The appearance of a person’s name in the gazette referred to in Section 38 of CAP 127 is incontrovertible evidence that firstly, the person ought to be a minister of a religious body and secondly, that person ought to be validly appointed as a marriage officer under CAP 127 with the authority to solemnize an ordinance marriage. The unchallenged evidence before this Court confirms that at all material times of the celebration of the marriage between the Petitioner and Respondent, the officiating minister in the person of Rev Ben Anum who may have been a recognized minister of the Christian Action Faith Ministries (Action Chapel International) at that time was not a marriage registrar or officer duly appointed and gazetted under the law to solemnize marriages. Indeed, exhibit ‘C’ which was published on 11th April 2003 does not list the said Rev Ben Anum as a marriage officer capable and qualified to solemnize an ordinance marriage. The said Exhibit ‘C’ post-dates the marriage of the parties which took place on 18th December 1998, five (5) years after the marriage was celebrated. This is evidenced by the marriage certificate tendered as Exhibit ‘B’ and same clearly shows the date on which the marriage was celebrated/ solemnized by Rev Ben Anum. The solemnization of a marriage under Cap 127 by an unlicensed person constitute a formal error or defect to the celebration of that marriage, putting into issue the validity of the marriage and forming a ground for the said marriage to be regarded null and void. Consequently, the legal effect of what Rev Ben Anum purported to do could best be described as a celebration of a religious marriage rite according to the practice of the church not intended to create a legally binding marriage. The English Court in HUDSON V LEIGH [2009] EWHC 1306 (FAM) in determining whether the ceremony that took place in Cape Town on 23rd January 2004 between Robert Leigh and Gillian Hudson constituted a valid marriage held that the ceremony 13 did not constitute a valid marriage as the couple had intended the ceremony to be rather religious and not legal marriage and so failed to submit their legal identities to the marriage registrar in compliance with formal requirements of marriage under the law. His Honour Judge Aglionby in GEREIS v YAGOUB 854 [1997] 1 FLR granting a decree of nullity held among others that ‘The Marriage Act 1949, s 49 provided that a purported marriage would be void if the parties had knowingly and willfully intermarried without having given due notice to the superintendent registrar. It was common ground that no such notice had been given... It is common ground that the parties never sought to comply successfully with the provisions of the Marriage Act 1949.’ Similarly, the Court of Appeal in the case of APPOMASU v. BREMAWUO AND ANOTHER [1980] GLR 278-283, Apaloo C.J as he then wasted no time declaring invalid the marriage ceremony performed at the St. Peter's Cathedral, Kumasi, between H. and W. under the Marriage Ordinance, Cap. 127 (1951 Rev.)The Court held allowing the appeal... “it seemed plain from the evidence given by W. concerning their motivation to contract the church marriage that their objective was to celebrate a marriage which conformed with the rites of the Catholic Church and which would also enable them to qualify for admission to the holy communion administered by the church. The legal effect of the church ceremony did not constitute a marriage under the Marriage Ordinance, but a marriage blessed by the church. On W.'s own showing they did not deliver to the reverend father either a registrar's certificate or two marriage officer's certificates as required by section 31 of the Marriage Ordinance, Cap. 127; neither were they asked to sign a marriage certificate nor was a certificate given to them as required by section 34 and 35 of Cap. 127.” From the foregoing, the validity of the marriage celebrated between the Petitioner herein and Respondent is put in issue as a result of non-compliance with the formal requirements of a valid marriage outlined in CAP 127. 14 By paragraph 14 of the Petitioner’s witness statement, the families of both the parties have already performed the necessary rites to dissolve the marriage under customary law after concluding that the marriage between the parties had broken down beyond reconciliation. On the face of the marriage certificate evidencing the said marriage and tendered into evidence as Exhibit ‘B’, there is no indication that the parties were previously married under Customary Law. The Petitioner is described as a spinster whereas the Respondent is described as a bachelor. The plain and ordinary meaning is that the parties were not customarily married before their monogamous marriage. There is no evidence before the Court that the parties had a customary marriage performed before the celebration of the ordinance which the Petitioner now seeks to annul. In fact, no part of the pleadings mentions that the parties married under customary law. On the contrary, even if there was proof that the parties had previously married under customary law, once they converted same to a monogamous marriage, the customary marriage would have fallen off automatically and ceased to exist. Under the Marriages Act, a party cannot purport to contract two marriages to one partner. The reverse position is that if the parties had unsuccessfully converted their customary marriage to an ordinance one then they would have returned to the status quo ante and the customary marriage would still be valid. The most reasonable inference this court can make from the foregoing is that there was no Customary law marriage between the Petitioner and Respondent for the families of the parties to attempt to dissolve. FINDINGS OF THE COURT A verse from the poem “My Husband Falling” by Robert Hamberger goes like this... 15 “Time trips you like a pavement, says I’ll show you what falling’s for.” This excerpt encapsulates the unforeseen challenges that time may present, even to the most enduring partnerships. The dissolution of a union that has spanned over two decades is a matter of profound gravity. Such is a journey, rich with shared experiences, joys, and challenges but painfully would have to be deemed as if it never even started. After evaluating the overall evidence adduced before the Court by the Petitioner through her lawful attorney, I find that the marriage celebrated between the Petitioner and Respondent at the Action Chapel of Christian Action Faith Ministries, Spintex Road, Accra on 18th December 1998 is Void, having been solemnized by a person who was not a licensed marriage officer duly appointed and gazetted under the law to do so. Indeed Section 13(4) of the Matrimonial Causes Act, (Act 367), emphasizes the legal effect of Void Marriage stating that “Nothing in the section shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted.” This means that a void marriage remains void whether so declared by a Court of competent jurisdiction or not. However, the Petitioner having commenced this suit, seeking to have the void marriage annulled, she is entitled to a Decree of Nullity to annul the marriage between herself and the Respondent pursuant to Section 13 of the Matrimonial Causes Act. I do not consider the conduct of the parties blame worthy for ignoring the absence of the formalities and the consequences thereon to contract a valid marriage. In my view, perhaps the parties, twenty-five (25) years younger in the year 1998 were struck by the disease called ‘blindly in love’ and are just now finding a cure to the blindness not the love for as sung by Leonard Cohen... Ain’t No Cure for Love or is there?!(emphasis mine) STATUS OF THE CHILDREN OF THE MARRIAGE 16 The rights of the children of the marriage though declared null and void by this Court, is not affected, as provided for by Section 14 of Matrimonial Causes Act 1971(Act 367) as follows: "14. Children of annulled marriages Where a decree of nullity is granted, a child of the parties to the decree shall be deemed to have the same status and rights as if the marriage of the parents had been dissolved rather than annulled." Section 3 of the Children’s Act 1998 (Act 560) also provides: No person shall discriminate against a child on the grounds of gender, race, age, religion, disability, health status, custom, ethnic origin, rural or urban background, birth or other status, socio-economic status or because the child is a refugee.(emphasis mine) The Petitioner prays for joint custody of the minor child to be granted to both Petitioner and Respondent. In determining matters affecting the minor child, this Court is enjoined by Section 2 of the Children's Act 1998 (ACT 560), to ensure that the primary consideration of the Court in the grant of custody or access, is the best interest of the children. Section 2 of Act 560 provides: Welfare Principle. (1) The best interest of the child shall be paramount in any matter concerning a child. (2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child. I am of the view that it is in the best interest of the child that joint custody be granted to the Petitioner and Respondent. 17 Notwithstanding that the Petitioner does not seek maintenance reliefs for the minor child, this Court is entitled suo motu to grant the reliefs to the Petitioner, should it find same to be in the best interest of the child in accordance with Section 22 of the Matrimonial Causes Act [1971] ACT 367, which provides: Custody and financial provision for children (1) In proceedings under this Act, the Court shall inquire whether there are any children of the household. (2) The Court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child. (3) Without prejudice to the generality of subsection (2), an order under that subsection may (a) award custody of the child to any person; (b) regulate the right of access of any person to the child. (c) 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" By Sections 6 and 47 of The Children's Act 1998 (ACT 560), it is the duty of a parent to provide care, maintenance, and necessaries of life, among others, for a child. To cap it all, Article 28(1) of the 1992 Constitution provides that: (a) every child has the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents, except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law. (b) every child, whether or not born in wedlock, shall be entitled to reasonable provision out of the estate of its parents. 18 (c) parents undertake their natural right and obligation of care, maintenance and upbringing of their children in co-operation with such institutions as Parliament may, by law, prescribe in such manner that in all cases the interest of the children are paramount. Accordingly, this Court holds that the Respondent is obligated to undertake 50% of the costs of maintenance, educational and medical bills in respect of 13-year-old Sanaa Nshren Osei whilst the Petitioner bears the other 50%. PROPERTY SETTLEMENT The right of spouses to properties upon the dissolution or annulment of marriage is enshrined in Article 22(3) (a) of the 1992 Constitution. The provision recognizes the right of spouses to have equal access to property acquired jointly during marriage. Article 22 (3) (b) recognizes that properties acquired jointly during marriage, are to be distributed equitably between the parties, upon dissolution of the marriage. In the current case where the marriage of the parties has been annulled as void rather than dissolved, a party entitled to property upon annulment of a marriage is, however, not left without remedy. The Court derives authority under sections 20 and 21 of the Matrimonial Causes Act1971 (ACT 367) to make provision for such a party. Section 20 of Act 367 provides that: Property Settlement. (1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable. (2) Payments and conveyances under this section may be ordered to be made in gross or by instalments. 19 Section 21 provides: Conveyance of Title. (1) When a decree of divorce or nullity is granted, if the court is satisfied that either party to the marriage holds title to movable or immovable property part or all of which rightfully belongs to the other, the court shall order transfer or conveyance of the interest to the party entitled to it upon such terms as the court thinks just and equitable. (2) When a transfer or conveyance of movable or immovable property is ordered by the court and the party ordered to make the transfer or conveyance is either unable or unwilling to do so, the court may order the registrar of the court to execute the appropriate transfer or conveyance on the part of that party. It is worth noting that no evidence was presented to this Court in respect of any of the properties mentioned in the Petition or on how they were acquired or in whose name(s) they were acquired. In the absence of such evidence and any adverse claim by the Respondent, the Court shall not belabour the subject and grant the prayer of the Petitioner as follows: 1. The residential home at Cantonments in Accra and office building at Dzorwulu housing the Petitioner’s law office be settled on the Petitioner. 2. The parties’ residential property at Senchi in the Eastern region together with the parcels of land be settled on the Respondent Each party in favour of whom a settlement is made may enforce same in accordance with section 21 of Act 367 (supra). Conclusion I accordingly declare that the marriage celebrated between the Petitioner and the Respondent on 18th December 1998 at the Action Chapel of Christian Action Faith 20 Ministries Spintex Road, Accra under the Marriage Ordinance Cap 127 is null and void and of no legal effect and judgment is entered on the Petitioner’s terms with some modifications as follows: 1. The residential home at Cantonments in Accra and office building at Dzorwulu housing the Petitioner’s law office are settled on the Petitioner 2. The parties’ residential property at Senchi in the Eastern region together with the parcels of land are settled on the Respondent 3. Joint Custody of the minor child, Sanaa Nshren Osei is granted to the Petitioner and Respondent 4. That the Respondent is to undertake 50% of the costs of maintenance, educational and medical bills in respect of the minor child, Sanaa Nshren Osei whilst the Petitioner bears the other 50%. There will be no award of legal costs. (SGD) H/H BASILIA ADJEI-TAWIAH CIRCUIT COURT JUDGE 21