AGARTHA RIGG-STWART VRS EDWARD NANA RIGG-STEWART [2024] GHACC 405 (17 December 2024)

**IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST ON TUESDAY, THE 17****TH****DAY OF DECEMBER, 2024 BEFORE HER LADYSHIP VERONIQUE PRABA TETTEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE.** _Suit No. C4/03/2024_ AGARTHA RIGG-STEWART : : PETITIONER VS EDWARD NANA RIGG-STEWART : : RESPONDENT **J U D G M E N T:** The petitioner is by this petition, filed on the 9th of October 2023, seeking the dissolution of the marriage celebrated with the respondent on the 5th of September 2005 at the Cape Coast District Court as well as these reliefs: 1. That the respondent be ordered to pay in the alternative to the petitioner a lump sum money as financial settlement 2. That the following properties be settled in favour of the petitioner 1. 4 bedroom matrimonial house at Efutu Abasa’ 2. 1 chamber and hall apartment and a store single handedly put up on the available portion of the matrimonial land by the petitioners own resources 3. 4 bedrooms at house number P/C Damsel FISH street with a garage which the petitioner has converted the said garage into a master bedroom using her own resources 4. Block yard factory at Saltpond 5. Picanto car no. GX4826-20 registered in the name of Emmanuella Rigg-Stewart for commercial purpose. **Whether marriage has broken down beyond reconciliation** The duty of the court where a petition is presented is espounded in the case of Knudsen v Knudsen 1974 1 GLR 133. Holdings one and two in the case provide that _(1) Under Act 367, s. 2(2) the court has to inquire into the facts alleged by the parties. The court does not have to hold such inquest in all cases. Where the evidence of a petitioner stands uncontradicted, an inquest by the court is not necessary unless it is suspected that the evidence is false or the true position is being hidden from the court._ _(2) Act 367 seems to draw a distinction between appearance and reality, in that a petitioner after proving one of the facts enumerated in section 2(1) is deemed to have shown that the marriage has broken down beyond reconciliation; but by section 2(3) the court is directed to conduct an inquiry to find out whether in truth it has done so. The court has then to consider all the evidence, including what it has found upon its inquiry and, if satisfied that the marriage has already broken down, decree a divorce._ With the above admonition in mind, I have carefully considered the unchallenged evidence of the petitioner on record and I am satisfied that the marriage between the parties has broken down beyond reconciliation. I find there to be no doubt of same as the parties for the past 18 years have not lived together as husband and wife. This fact was not disputed from the line of questions that were asked of the petitioner during her cross examination. The respondent did not also testify so there are no alternative facts to counter the petitioner’s evidence. I find that the 18 years the parties lived apart is far in excess of the number of years mentioned under section 2(1) of Act 367 as proof of breakdown of a marriage. Section 2(1)( c)(d) and (e) provide that _(1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the Court of one or more of the following facts:_ _(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;_ _(__d_ _) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal_ _(e)that the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or_ Considering the above provisions and being satisfied that the parties have not lived together as husband and wife for more than a decade, I find that the marriage celebrated on the 9th of September 2005 has broken down beyond reconciliation and hereby grant the petition for dissolution **Whether or not house number PC 142 Damsel Fish Street is joint property** The next issue for determination which was the main focus of both parties during the trial is whether is whether or not house number PC 142 Damsel Fish Street was jointly acquired by the parties. The petitioner testified and called 3 witnesses in support of her case. Her evidence was that after jointly putting up the house to the roofing level, the respondent deserted the marriage leaving her and the children at their rented premises at Nsuekyir. The petitioner says through her own efforts she succeeded in carrying out plastering, fixtures, fittings and connecting electricity and other things to the house so they could move in. She continued that, after moving into the house, she converted the garage into a master bedroom with her own resources which she currently uses. She also constructed a store with a single room attached all by herself. She claims further that, after 18 years, the respondent returned requesting one of the rooms to move into even though he had acquired a 4 bedroom house by himself. She thus resisted his efforts and he later returned with police who harassed her and destroyed some property in their home. The petitioner was cross examined and her evidence of the completion of the building was challenged but she maintained that the respondent abandoned the home and it was through her efforts and that of her children as well as her siblings that she completed the home and made it habitable. The first witness of petitioner testified that it was he who commenced the salt business with the respondent. He testified that all proceeds of the salt business went to the respondent’s sister and later to a person designated by the respondent. He also testified that when the salt business was sold, all the proceeds were given to the said sister. He denied that the petitioner had received proceeds from the salt business or that same had been used to construct the matrimonial home. He also stated that he had seen the matrimonial home and that at the time he saw it was uncompleted; it was neither roofed nor plastered and thus unfit to live in. The third witness of the petitioner testified that he was a contractor who had been hired several times by the petitioner to roof the building. He stated that due to the petitioner’s inability to raise the funds needed to complete the roofing, the lumber initially purchased got destroyed. He further stated that the first time he was taken to the land where the building was situate, it was bushy and the building was not in a good condition and also that he was the one who converted the garage attached to the building into a master bedroom. The final witness of the petitioner was the daughter of both parties. She also testified that the respondent had abandoned their home when she was a child and that it was through the sole efforts of the petitioner that the building in dispute had been completed. She also testified that the respondent had a 4bedroom house and that he had sent her monies to construct a 4 bedroom house for him. All these witnesses were cross examined and I found their testimonies credible. The respondent was given several opportunities to open his defence but failed to appear in court. Counsel for the respondent, alleged that the respondent was not medically fit but was unable to provide proof of same to this court hence the presumption that the respondent’s absence was deliberate. In order not to further delay the case, the case was adjourned for judgment. The evidence of the petitioner and her witness establishes that that the building in dispute was uncompleted at the time the respondent travelled outside the country and that the petitioner and her children were living in rented premises at the time. The evidence also shows that the petitioner together with contribution from others completed the building and moved in with her children without the respondent. The evidence shows also that it is only recently that the respondent returned after a long separation from the petitioner to demand a share in the home or for a room as testified by the petitioner. I am satisfied and find that the petitioner contributed substantially to the construction and completion of the home in which she currently lives with her children. Her substantial contribution to the completion of the home and the fact that the home had been constructed up to a point before the respondent left the matrimonial home is sufficient evidence that the home was jointly acquired by both parties. I am satisfied and find that the house at Damsel Fish Street Cape Coast was jointly acquired by both parties. Again, the evidence led by the petitioners last witness also shows that the respondent has constructed for himself another home situate at Efutu Abasa and that this property was solely acquired by the respondent. The petitioner is seeking the court to settle in her favour this property. I do not find that the petitioner has an interest in the property at Effutu Abasa as the petitioner did not contribute to the acquisition of same. The evidence shows that at the time of the acquisition of the property the parties were separated and that this property was not intended as a matrimonial home. See the cases of Kusi V Adarkwah [[2022] GHASC 86](/akn/gh/judgment/ghasc/2022/86) (Unreported delivered on the 4th May 2022), Fynn v Fynn & Osei 2013-14 1 SCGLR 727 and Quartson v Quartson [2022] SCGLR 727 others where the Supreme Court has held that the fact that property was acquired by a spouse during marriage does not mean that property is matrimonial property. For such property to be considered as such there must be proof of joint acquisition. In Kusi v Adarkwah, His Lordship Kulendi (JSC) put it as follows: “ _We are of the view that, of course, the mere fact that a property is acquired during the pendency of marriage does not automatically make it a matrimonial property liable to equitable disbursement upon the dissolution of the marriage. However, the fact that a property was acquired during the pendency of a marriage raises a presumption, albeit rebuttable, in favour of the property being matrimonial property. Once a party leads evidence to establish that the said property was acquired during the subsistence of the marriage, the burden would shift to the other party to adduce enough evidence to dispel the presumption that the said property, having been acquired during the marriage, is not a joint property or matrimonial property”_ The petitioner in asking for a share of this property has failed to provide any evidence of her contribution to the acquisition of the property. I do not find that she is entitled to a share of this property. I do find that she is entitled to the Damsel Fish Street property. Section 20 (1) of Act 367 provides that _The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable._ In view of the substantial contribution made by the petitioner in respect of the property at Damsel Fish Street over the years, I find that she is entitled to the grant of her relief in respect of that house. I hereby order the respondent to settle on the petitioner house number PC 142 Damsel Fish Street. **Other reliefs** The petitioner also seeks an order of the court awarding her lump sum as financial settlement. In considering this relief, I am guided by the case of Barake v Barake 1993-94 2 GLR 635 where it was held that under section 20 (1) of Act 367, the court had power to grant financial provision where married couples were divorced. The basic consideration was not based on proof of ownership or contribution towards acquisition of the properties to be awarded but on the needs of the parties. Again in Kusi v Adarkwah (supra) his Lordship Kulendi JSC while stating that the power of the court under sections 19 and 20 of the Matrimonial Causes Act was discretionary also stated that it was mandatory for the court to consider the circumstance of the parties. These circumstances included the income earning capacity of the parties, the contribution of the parties towards maintaining the marriage as well as the sacrifices made or opportunities forgone due to the marriage. Having given consideration to these factors and finding that the respondent is at a financial advantage over the petitioner and that the petitioner for the past 18 years has endured by having to be the sole parent I find that a minimal award of GH¢50,000 is reasonable and sufficient. Thus the respondent is ordered to pay the amount of GH¢50,000 to the petitioner as financial settlement. In respect of the block yard factory at Saltpond, I do not find that sufficient evidence was led on same to grant the relief sought by the petitioner and same is dismissed. As regards the vehicle sought, the evidence of the petitioner shows that the car is registered in the name of her third witness and thus the order she seeks is refused. This is because the car having been gifted to the said witness is no longer property of the respondent. In conclusion the marriage of the parties is hereby dissolved as having broken down beyond reconciliation. The following properties are settled in favour of the petitioner 1. The 1 chamber and hall apartment and single store situate on part of the property at Damsel Fish Street. 2. The 4 bedroom house at Damsel Fish street together with the garage converted by the petitioner 3. Financial lump sum payment of GH¢50,000 The respondent is to convey his interest in the house on Damsel Fish Street within 60 days of this order failing which the registrar of this court is to execute a transfer of the property to the petitioner. There will be no order as to cost. (sgd) H/L Veronique Praba Tetteh J (MRS) High Court Judge sitting as an additional Circuit Court Judge 3