YIADOM VRS. DARKO (A1/22/2018) [2025] GHADC 23 (29 January 2025)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 20TH MARCH, 2025 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. A4/17/2024 AKOSUA AMOABENG VRS. KWABENA SIAW JUDGMENT 1. The petitioner and respondent contracted a customary marriage in 2001. In April 2024, their twenty-three year marriage was dissolved by their families. During the dissolution of the marriage, the petitioner demanded for GH¢50,000.00 as her fair share of the properties acquired during the marriage. The respondent refused and offered to pay her GH¢5,000.00 plus one and a half poles cocoa farm. The petitioner accepted this offer. However, when the petitioner demanded for the money and the cocoa farm, the respondent refused to pay and said she can take him to court if she wants. After several attempts to get the respondent to pay failed, the petitioner on 16th September, 2024 filed the instant petition seeking an order from the court compelling the respondent to give her GH¢50,000.00 as a fair share of the properties they acquired during their marriage. 2. The petitioner’s case is that in April 2024, her family and that of the respondent met to dissolve their customary marriage after the respondent informed her family that he could no longer remain married to her. During the said meeting, her family appealed to the respondent to rescind his decision, but he refused and insisted he Page 1 of 15 wanted a divorce. Their families agreed and the customary marriage between them was dissolved. Her family then asked the respondent what properties they acquired during their marriage. The respondent did not respond but rather told her family that he would give her a cocoa farm measuring one and a half poles and GH¢2,000.00. She rejected the said offer. He then increased the amount to GH¢5,000.00 but she refused the offer and suggested that he take the one and a half poles of cocoa farm he had suggested earlier and give her cash of GH GH¢50,000.00, inclusive of the GH¢5,000.00. The respondent rejected the proposal and told her to send the matter to court. She informed the respondent’s father to ensure the respondent pays the money, but this also proved futile. She called one witness in support of her case. 3. According to Stephen Asamoah Gyembibi, the petitioner’s witness, the petitioner is his niece. One day, the respondent called the petitioner’s father, who is his brother-in-law to inform him that he could no longer remain married to the petitioner. In March 2024, the two families met in the petitioner’s house in the hope of resolving the issue between the parties, but their effort proved futile. His family informed the respondent that looking at the length of time they were married, he must compensate the petitioner. In response, the respondent stated that he would only give to the petitioner GH¢2,000.00 and a cocoa farm without mentioning the size of the cocoa farm. He then suggested an amount of GH¢5,000.00 in addition to the cocoa farm but the petitioner turned down the offer and said she would only accept GH¢50,000.00. This enraged the respondent who said he didn’t have that amount and ordered them to send the case to any place they wished. 4. The respondent’s case is that in April 2024, he decided to end his twenty-three year marriage to the petitioner due to the constant curses she invoked on her. On 2nd Page 2 of 15 October, 2023 he went to sleep at the petitioner’s house at Amudurase. On his return to Atobiase, he gave her GH¢40.00 out of GH¢480.00 arrears he owed him, but she rejected it and came to his house to invoke curses on him. He decided not to visit her again, but the petitioner reported him to Social Welfare Department, New Edubiase. He called the petitioner’s father and informed him about the constant curses the petitioner was raining on him. Her father promised to talk to her, but he did not hear from him again on the matter. PW1 decided to intervene in the on-going dispute between him and the petitioner. He informed PW1 that he would need to discuss the issue with his family since the petitioner had also threatened to kill him. PW1 replied that there was no need to discuss the issue with his family, and that if he was no longer interested in the marriage, he should return the petitioner to her family. One month later, he went to the petitioner’s family house to end their marriage. Present at the meeting was PW1 and other members of the petitioner’s family. The petitioner’s father was not present at the said meeting. The petitioner suggested that he compensate her with GH¢50,000.00 because she had help him to acquire a lot of properties during their marriage. He rejected the offer and offered to pay her GH¢5,000.00 plus half an acre of cocoa farm but she rejected it. He acquired the said properties before they were married. During the pendency of their marriage, they cultivated five acres of cocoa farm on a ninety-nine year lease. They also built two stores at Amudurase which are in the possession of the petitioner. He called three witnesses in support of his case. 5. According to the evidence of Kwaku Appiah, the respondent’s first witness, the respondent is his son. The parties were married under customary law at Adansi Fomena. They have two children, eight year old Gifty Siaw Afriyie and four year old Judith Siaw. He was once informed by the respondent that he had built two stores at Adansi Amudurase and needed three packets of roofing sheets to roof the Page 3 of 15 rooms at Amudurase. The roofing sheets were given to the respondent by Yaa Bo. Years later, the petitioner called to inform him that he had invoked curses on the respondent. This is a habit of the petitioner. After this the respondent informed him that he could no longer live with the petitioner because of the constant curses she was invoking on him. He pleaded with the petitioner to reverse the curse, and she agreed. When he spoke to the defendant later to find out if the curse had been reversed, the respondent told him he did not know. In March 2024, the respondent informed his family that he wanted a divorce. Both families met and the marriage was dissolved. It was agreed that the respondent would compensate the petitioner by paying her GH¢5,000.00, giving her half an acre of cocoa farm located at Apagya Ekwanho, and monthly payment of GH¢800.00 for the children. 6. According to the respondent’s second witness Kojo Isaac he was contracted by the respondent to roof two stores at Amudurase. After he completed the work, the respondent paid him GH¢1,500.00. 7. In the evidence of the respondent’s third witness Michael Danso, his farm shares a boundary with the petitioner’s cocoa farm. One day, he went to his farm and found the respondent injured on the farm. He decided to assist the respondent to the roadside. On their way, he met the petitioner and left the respondent with her. Since his farm shares a boundary with the petitioner’s farm, his assumption is that the farm belongs to her. 8. The issues for determination are: a. What properties were acquired by the parties during the subsistence of their marriage, Page 4 of 15 b. Whether or not the five acres of cocoa farm and two stores located at Amudurase form part of the properties acquired during the marriage, c. Whether or not GH¢50,000.00 is a fair amount as compensation for the petitioner 9. The standard required of a party to a suit who makes an averment which is denied by the other party is one of proof by the preponderance of probabilities. This means the party making the assertion must lead evidence in proof of the said assertions to convince the court that the existence of the facts he asserts are more probable than their nonexistence. 10. Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides 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 the issue.” Preponderance of probabilities has been defined as “that degree of certainty of belief in the 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.” 11. The Law Reform Commission in its commentary on section 11 of NRCD 323 stated thus: “The party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” 12. In Bisi and Others v. Tabiri alias Asare [1987-1988] 1 GLR 360 the court quoted with approval the explanation of the word probability given in the American case Page 5 of 15 of Norton v. Futrell, 149, Cal App. 2d 566 (1957) as follows “…The term ‘probability denotes an element of doubt or uncertainty and recognizes that where there are two choices, it is not necessary that the jury be absolutely certain or doubtless, but that it is sufficient if the choice selected is more probable than the choice rejected.” 13. By section 41(1)(2) of the Matrimonial Causes Act, 1971 (Act 367) a court is empowered to assume jurisdiction and apply the provisions of Act 367 to non- monogamous marriages. The section provides as follows, “(1) This Act shall apply to all monogamous marriages. (2) On application by a party to a marriage other than a monogamous marriage, the Court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the Court may (a) consider the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, in addition to or in substitution for the matrimonial reliefs afforded by this Act.” 14. In the case of Adjei v. Foriwaa [1980] GLR 378 the court held that “…any party to a marriage other than a monogamous one who seeks a relief from this court, which but for the above-quoted section the court could not have entertained must be deemed to have made an application to the court to apply the provisions of this Act to the marriage. But for the provisions of this Act, it was not the province of the High Court to entertain petitions for divorce where the marriage was one contracted under customary law. Customary law divorce was by act of the parties not by a decree of the court. The court could be requested to ascertain whether there was a valid customary law marriage or whether such a marriage Page 6 of 15 had been dissolved according to custom. But the customary procedures for the dissolution of customary law marriages did not lend themselves to a dissolution of the marriage by a court action. The courts, therefore, until the enactment of Act 367, could not entertain a petition for the dissolution of a customary law marriage.” 15. The petitioner’s claim is that she assisted the respondent in a. the acquisition and cultivation of three cocoa farms, b. the construction of two bedrooms, one kitchen, a toilet and bath, and two stores. 16. The respondent denied this assertion and stated that he acquired the above properties before his marriage to the petitioner. According to him, the only properties they acquired during their marriage is a five acre farm and two stores at Amudurase, which properties are in the possession of the petitioner. However, the respondent’s own father Mr. Kwaku Appiah, during cross-examination by the petitioner admitted that the respondent never mentioned the five acre cocoa farm nor the two stores at Amudurase as properties they acquired in the course of their marriage during the dissolution of the marriage by the families. These is what he said: “Q: Do you remember the respondent saying he had built two stores `for me at Amudurase, so I should add it to the cocoa farm? A: I did not hear. Q: Did you hear him say he had cultivated five (5) acres of cocoa farm at my hometown of Amudurase, so I should add same to the farm and the stores? A: He did not say it at the house. He later told me about the cocoa farm at Amudurase.” Page 7 of 15 17. When he was cross-examined by the petitioner, he did a complete U-turn and admitted that they did not acquire the said farm together. This was his contribution to the said property: “Q: At the time I took you to social welfare, the marriage had not been dissolved. It was during this time that you began an affair with Ama Dansi. I said God will repay you, I never said Antoa should kill you. You did not give me the five acres of the cocoa farm. That farm belongs to me. You offered one and a half poles of cocoa farm, not half a pole. I asked that the farm be converted into cash in addition to the GH¢5,000.00, making a total of GH¢50,000.00 but you refused. You said you will not pay. Concerning the loan, you paid some and I also paid some. I went for the loan so whenever the bank demanded for their money, I would ask you. On some days you will give me money to pay, on other days you will not. On the days you refused, I paid with my own money. If the cocoa farm and stores at Amudurase were properties acquired during the marriage, you would have said so when the marriage was dissolved. I put up the two stores when you sacked me from our matrimonial home at Atobiase. A: It is true that you acquired the warm at Amudurase before we married. But I paid for two poles to be cleared when you were ready to plant. This farm is the five acres I am talking about. I helped you to build the two stores, from its foundation to its roofing. Q: Did I not cut the cement blocks before you sacked me from Atobiase? A: Yes, but it was not enough. I bought additional blocks from brother Alex and Wofa Nkrumah. Q: You are not being truthful to the court. I moved to Amudurase when you refused to allow me take care of my late two sisters four children. you said you would not take care of someone else’s children. Since I couldn’t abandon Page 8 of 15 them, I moved to Amudurase. The house I am living in is mine. The was no store, so I decided to build two stores to restart my business. Before I built the stores, I was unemployed for one year. My goods were in the stores at Atobiase collecting dust. That is what prompted me to build the stores at Amudurase. My older brother Yaw David helped me to construct the stores. A: What you are saying is not true. I helped you to buy roofing sheets and one trip of sand. Q: I am putting it to you that all that you have said is not true. If it was, you would have said so during the dissolution of our marriage. A It is true. I brought witnesses to testify that I worked on the farm at Amudurase. I was even injured.” 18. The respondent who initially denied any contribution of the petitioner to the construction of the two bedrooms, one toilet and bath, and two stores, admitted when he was cross-examined by the petitioner that she took out loans to assist him with his business. The petitioner was able to provide the exact amount of each loan she took out to help the respondent in the construct of the two bedrooms, toilet and bath, two stores and his business. This is what she said during cross- examination by the respondent “Q: How much did you contribute to the construction of the stores, rooms, and kitchen? A: I took loans from Adansi Rural Bank to help you. I took out a loan of GH¢3,000.00, GH¢2,000.00m and GH¢1,000.00. the las loan I took out was GH¢10,000.00. Q: You are not being truthful. Provide evidence of these loans. A: I took these loans from the Fomena branch about 16 years ago. Because I was taking loans to help you who was my husband, I did not ask for any Page 9 of 15 receipt. The amount I took was written in my susu book. At that time, the closest branch of the bank was at Fomena. Q: It is not true; you never gave me money. The house was completed when you came. If you took out loans, you took them for your business, but it was not to help me build my house. A: What I am saying is true. I even took out loans to assist you with your business. Tell the truth.” 19. However, when he was cross-examined by the petitioner, he admitted that the petitioner had taken out loans to assist him but he repaid the loans. This what transpired: Q: What you are saying is not true. I took out a loan of GH¢10,000 and gave it to you to work. But you refused to maintain the children and me. You stopped asking about the children. You also refused to talk to us. I took out other loans for you. I received a demand letter from Adansi Rural Bank for repayment. When I told you, you beat me at Abrepo Junction, causing me to lose my wedding ring. Until now I have not found the ring. While I was taking out loans to give to you, you were having an affair with another woman by name Ama Dansi. So, I called your father to inform him. You told me you didn't want more children; I forced you to have our children so I should look after my own children. That is when I told you that God will repay you for the suffering you were causing me. That is when you told me I had cursed you and you were therefore no longer interested in our marriage. A: It is not true. Q: My uncle came and told you this is not a good reason to dissolve a marriage. They offered to assist us to resolve the issue. By then you had ignored me and the children for 8 months. You had stopped visiting the children and Page 10 of 15 me. That is when my father asked you to return me to my family. After the marriage was dissolved, you offered to give me GH¢2,000.00 as alimony but the family rejected it. You then revised the amount to GH¢5,000.00. I refused this offer as well because I informed both families about the loan I had taken to help your business and the properties we had acquired. You added 1½ poles of a cocoa farm at Atobiase. Your father advised me to take the offer because of the children. I accepted the offer, but you failed to pay. After four months, I called my former father-in-law about his son's failure to pay the alimony. He told me his son says he cannot give the money and the farm, so I can take the case to court if I wish. I was communicating with your father because you refused to talk to me. Your father even promised to add extra money to the GH¢5,000.00 you offered. A: It is not true that I did not take care of the children for eight months. It was two months. You stated so in your petition. My father never promised to add money to the GH¢5,000.00 I offered because he was with me when we agreed to give you GH¢5,000.00. You did not say God will repay me. You said if I take the money and buy food, Antoa should kill me. I had to go to the Antoa shrine to reverse the curse. She said it more than three times, it is true you used to take out loans from Adansi Rural Bank for me, but I used to repay you. The reason why I began a relationship with Ama Dansi is because you returned the drinks to my family on two occasions. On one of those occasions, you had the marriage dissolved. After the marriage was dissolved, you spoke to an elder of your church who spoke to us, and we resolved our issues and remarried. After we came together, you cursed me again and I decided to end our marriage. I offered half a pole of cocoa, not one and half poles. I refused to give you half a pole of cocoa farm because I have given you the five acres we acquired at Amudurase plus two stores also Page 11 of 15 at Amudurase. I agree that I said I won't give you the GH¢5,000.00 and the half acre of a cocoa farm because of the properties I gave you, that is the five acre of farm and the two stores. 20. Clearly the respondent’s assertion that the five acre cocoa farm at Amudurase was acquired during their marriage is not true. It is equally not true that the petitioner did not take out loans to assist him during their marriage. I find as a fact that the following properties were acquired during the marriage of the parties: a. Three cocoa farms located at Abaase, Afieso, and Apagya b. Two bedrooms, one kitchen, one toilet and bath, and two stores. 21. Furthermore, I find as a fact that the five acre farm at Amudurase was acquired by the petitioner before her marriage to the respondent. The respondent did go to work on the farm, but the petitioner was the main labourer on the said farm. Similarly, I also find as a fact that the two stores at Amudurase were constructed by the petitioner after she was forced to move out of her matrimonial home by the respondent. 22. During the course of the trial, it came to light that the petitioner agreed to take the sum of GH¢5,000.00, a cocoa farm at Atobiase, and GH¢800.00 as monthly maintenance for their two children. However, it is not clear what the size of the farm is. The petitioner claims the respondent said he would give her one and a half poles while the respondent and his father (DW1) claim the size of the land he offered is half a pole. This is disputed by PW1 who stated that the respondent never mentioned the size of the land. The said land was not mentioned as one of the properties forming part of the properties the parties acquired during their marriage. Page 12 of 15 23. The petitioner is seeking GH¢50,000.00 as an equitable share of the properties jointly acquired during her twenty-three year marriage to the respondent. Is this a fair amount looking at the duration of the marriage and her contribution to the acquisition of the said properties in dispute? 24. The law is that property jointly acquired during marriage becomes the joint property of the parties. Thus, such properties should be shared equally on divorce because the ordinary incidents of commerce has no application in marital relations between husband and wife: Mensah v. Mensah [1998-99] SCGLR 350 at 355. The failure or difficulty of a spouse to identify clearly distinct contributions in the acquisition of the joint property would not preclude a half and half sharing. However, where one spouse is able to prove separate proprietorship, agreement or a different proportion of ownership, the court would give effect to this: Gladys Mensah v. Stephen Mensah [2012] DLSC 2608. 25. The evidence adduced at trial shows the petitioner made substantial contribution to the acquisition of three farms as well as the construction of the two bedrooms, one kitchen, toilet and bath, and two stores built in addition to the respondent’s existing three bedroom house. The respondent admitted the petitioner took out loans to assist him with his business. However, the parties are tenants in perpetuity in respect of the three farms; they are not the owners of the land. The evidence on record shows the parties entered into abunu tenancies in respect of the three farms. Therefore, this court cannot order the respondent to hand over any of the farms to the petitioner. This notwithstanding the court can order for monetary compensation by the respondent to the petitioner. Page 13 of 15 26. Section 20 Act 367 empowers a court to order a party 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 the case of Gladys Mensah v. Stephen Mensah [2012] DLSC2608 Jones Dotse, JSC (as he then was) in stated “…this court will not permit the respondent to use the petitioner as a donkey and after offering useful and valuable service dump her without any regard for her rights as a human being… The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease…” 27. I agree with the petitioner that looking at the location of the farms as opposed to where she is currently residing, and the fact that she has sole care of six children, inclusive of her two children with the respondent, she cannot reasonably be expected to travel to any of these locations to farm. It is therefore just and proper that the respondent pays her a reasonable compensation for her contribution in the acquisition and cultivation of the farms in question and her contribution in the construction of the two bedrooms, kitchen, toilet and bath, and two stores. The sum of GH¢50,000.00 being demanded by the petitioner is an adequate, fair and just amount. The respondent is therefore ordered to pay the above sum to the petitioner. 28. The parties having agreed on GH¢800.00 as monthly maintenance for their two children, this court will not vary the said amount. 29. Cost of GH¢2,000.00 is awarded against the respondent. Page 14 of 15 H/W ANASTACIA Y.A. KARIMU, ESQ. [MAGISTRATE] Page 15 of 15