ASAREBEA VRS. OSAE (A4/3/2025) [2025] GHADC 16 (19 March 2025)

IN THE DISTRICT COURT HELD AT ABURI, EASTERN REGION ON WEDNESDAY THE 19TH DAY OF MARCH 2025 BEFORE HER WORSHIP BIANCA GYAMERA-BEEKO SITTING AS AN ADDITIONAL MAGISTRATE. COURT CASE NO: A4/3/2025 GLADYS ASAREBEA PLAINTIFF OF BEREKUSO-AKUAPEM VRS ISREAL OSAE DEFENDANT OF DOME CROSSING Petitioner present. Respondent absent. ____________________________________________________________________ JUDGMENT ____________________________________________________________________ By a petition filed on 20th September, 2024, the petitioner seeks the following reliefs: a. An order of this court to dissolve the marriage contracted by parties on 27th December, 2019. b. An order of the court to share the building under construction on a land acquired by the parties at Berekuso. 1 The Plaintiff’s case is that she and the respondent got married under the ordinance on 27th December, 2019 at the Presbyterian Church, Berekuso. The marriage has produced no issue. Petitioner complains that the Respondent has stopped performing his conjugal duties and is adulterous. He has also stopped maintaining her. He also taken his only son who was born prior to the marriage and who the Petitioner had been taking care of since he was two years old to live with his girlfriend. Respondent is also in the habit of sexually harassing the petitioner’s apprentices when she sends them to the house to run errands for her. The marriage has for these reasons broken down beyond reconciliation. The respondent in his response denied all that the petitioner had said and rather accused her of denying him his conjugal rights. He insisted that the marriage had not broken down beyond reconciliation and prayed for an opportunity to reconcile with the petitioner. On the first day the matter was heard, the parents of the parties accompanied them to court. This court, differently constituted, gave parties the opportunity to attempt a resolution of their issues. Subsequently, it became apparent that the parties would not be able to resolve their issues so the court ordered that the parties file their witness statements. The issues for determination by this court are 1. Whether the marriage has broken down beyond reconciliation, and 2 2. Whether the Petitioner is entitled to a share of the property situate at Berekuso. Section 14 of the Evidence Act, 1975 (Act 323) 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. In the case of Serwah v Kesse (1960) GLR 227, the Supreme Court stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the following tests for who bears this burden: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.” Accordingly, the petitioner bears the burden of proof in this matter. Whether the marriage has broken down beyond reconciliation Under Ghanaian law, the sole ground for granting a divorce is that the marriage has broken down beyond reconciliation; section 1(2) of the the Matrimonial Causes Act, 1971 (Act 367). In order to prove that the marriage has broken down beyond reconciliation, section 2(1) of Act 367 requires that the petitioner satisfies the court of one or more of the following facts: 3 (a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Petitioner is praying for dissolution of the marriage on grounds that her husband has committed adultery and so she finds it intolerable to live with him as stated in 2(1)(a) of Act 367. Respondent in paragraph 6 of his witness statement admitted that he had impregnated another woman. The law is that when an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact. The party only needs to rely on the admission; 4 see the Supreme Court decision of Re Asere Stool; Nikoi Olai Amontia iv (substituted by Tafo Amon ii v. Akotia Oworsika 111 substituted by Laryea Ayiku iii (2005-2006) SCGLR 637. On the strength of this authority I find that the Respondent has committed adultery as averred by the Petitioner. The evidence before me also shows that the petitioner has moved out of the matrimonial home, and to date the respondent does not know where she lives. I am therefore satisfied that the Petitioner does indeed find it intolerable to continue living with the Respondent. I therefore hold that the marriage between the parties has broken down beyond reconciliation. Whether the Petitioner is entitled to a share of the property situate at Berekuso. Article 22(3)(a) of the Constitution of Ghana, 1992 states: (3) With the view to achieving the full realisation of the rights referred to in clause (2) of this article— (a) spouses shall have equal access to property jointly acquired during marriage. The principle that property jointly acquired during marriage becomes joint property of the parties is trite; see the case of Gladys Mensah v Stephen Mensah CIVIL APPEAL NO. J4/20/2011 delivered on 22nd FEBRUARY, 2012. Two criteria must be met. Firstly, the property must have been acquired in the course of the marriage and secondly, it must have been acquired through the joint efforts of the parties. 5 The Petitioner testified that sometime in 2022, she and her husband bought a quarter plot of land from one Michael Lantei Lamptey for GHS27,000. Her husband made the first payment of GHS17,000 and she then later paid GHS4,900. She then paid the outstanding balance of GHS5,100 in instalments. The said Michael Lantei Lamptey testified for the petitioner and corroborated her testimony. He testified also that he saw the petitioner supervise workers constructing the building. Under cross-examination, he clarified also that it was the petitioner who even first approached him to discuss the land acquisition. The defendant under cross-examination admitted that the land was bought and the house built while the parties were married. There is therefore overwhelming evidence on the record that the property in question was acquired jointly by the parties in the course of the marriage. I therefore hold that it is matrimonial property within the meaning of Article 22(3)(a) of the Constitution of Ghana, 1992, and consequently, the petitioner is entitled to a share of same. The Supreme Court has held that unless the circumstances of a particular case demand otherwise, the principle of “equality is equity” is the preferred principle to be applied in the sharing of joint property; see the cases of Mensah v. Mensah [1998- 99] SCGLR 350 and Boafo v. Boafo [2005-2006] SCGLR 705. From the evidence before me, I see no exceptional circumstances that exist to warrant a deviation from this principle in the present case. I therefore hold that the petitioner is entitled to an equal share of the land and the building constructed on it. I order that the property be valued by the Evaluation officer so that the respondent pays the petitioner half of the value of the property. The Registrar is to supervise the evaluation exercise. 6 In conclusion, I hold as follows: 1. The marriage celebrated between the parties on 27th December, 2019 at the Presbyterian Church, Berekuso has broken down beyond reconciliation and same is hereby dissolved and the certificate with number 29/19, and licence number MDMC 179/20 is hereby cancelled. 2. The petitioner is entitled to an equal share of the land and the building constructed on it situate at Berekuso. Consequently, the property is to be valued by the Evaluation officer so that the respondent pays the petitioner half of the value of the property. The Registrar is to supervise the evaluation exercise. 3. I make no order as to costs. (SGD) H/W Bianca Gyamera-Beeko Magistrate 7