BOAH VRS. BOAH (A6/08/2024) [2024] GHADC 568 (29 November 2024)

IN THE DISTRICT COURT HELD AT PRESTEA ON FRIDAY THE 29TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ., SITTING AS DISTRICT MAGISTRATE SUIT NO.: A4/07/2024 BETWEEN: PHILOMENA GYASI OF PRESTEA – MODERN CITY : PETITIONER AND HARUNA ESHUN OF PRESTEA – NO. 3 : RESPONDENT JUDGEMENT This matter was commenced on the 21/2/2024 by the Petitioner for the following reliefs: 1. An order for the dissolution of the marriage between the parties. 2. An equal share of the seven (7) bedrooms with a hall located at Modern City, Prestea sharing common boundaries with the properties of Uncle Atta, Emmanuel Cudjoe and Auntie Akisi parties jointly acquired during the subsistence of their marriage. 3. An order of the Honourable Court compelling Respondent to maintain the three children at GH₵1,500.00 per month. 4. Any other reliefs the Court may deem fit. 1 | Page The Respondent as well filed appearance and respond to the petition on the 29/2/2024. It is the case of the Petitioner that they have been married for 15 years and blessed with three issues namely; Kasim Eshun, 13 years, Ishaque K. B. Eshun, 10 years and Adisatu Eshun, 5 years. That the Respondent has failed to maintain the children for the past five years and has physically and verbally abused the Petitioner at the least misunderstanding. It is the case of the Petitioner that the Respondent has vacated their matrimonial home and married another woman of whom Respondent now stays with. That the Respondent has not had sexual intercourse with Petitioner for the past four years and as such the marriage has broken down beyond reconciliation. In her witness statement filed on the 13/5/2024, the Petitioner repeated the above averments and added that the Respondent abused her and accused her of being a witch and has used same to spoil his juju. That the Respondent got married to his second wife without her knowledge. It is further the case of the Petitioner that he has moved out of the matrimonial home and anytime he comes visiting he rained insults physically and emotionally abuse her as well. That the Respondent only maintain the children with GH₵50.00 each week and has additionally disconnected electricity to the house for the past nine months. Petitioner indicates further all attempts by families of both parties to resolve the matter has yielded no results. To this Petitioner seeks divorce and a share in the property jointly acquired. During cross examination the Petitioner insisted that she played a part in the acquisition of the house by carrying water to the site, carrying sand and sometimes supervises the workers at the site. It came to the fore that the Respondent acquired a plot of land at Nakaba and he is putting up a building on it accordingly. PW1, Stephen Gyasi filed his witness statement on the 13/5/2024 and deposed to the fact that the Petitioner is his younger sister. That the Respondent got the Petitioner pregnant 2 | Page when she was about to go to SHS which truncated her education and subsequently married her in 2011. That the Respondent accused the Petitioner of being a witch because a certain Mallam told him so and that the Petitioner flirts with other men. The Respondent has physically abused the Petitioner on several occasions and on one of the occasions caused the arrest of Respondent. It is the case of PW1 that though both parties families have attempted to settle the differences Respondent continue to maltreat the Petitioner by failing to maintain the Petitioner and the children and not sleeping at their matrimonial home. It is the position of PW1 that the parties jointly acquired their matrimonial home and he was witness to that. When cross examined, PW1 insisted that Respondent physically assaulted Petitioner and the matter is still pending at the police station which was not controverted by the Respondent. PW1 further claimed that the house was built after Respondent married the Petitioner that was in 2011. The Respondent in response to the petition claimed they have been married for 13 years and further claimed he maintains the children including paying their school fees. Respondent denied having vacated the matrimonial home and admits that though he visits the house, he does not sleep there due to misunderstanding between them which consequently ends up at the police station. It is the position of Respondent that it is rather the Petitioner who has refused sexual intimacy with him and not the other way. It is the position of the Respondent that the marriage has bot broken down beyond reconciliation. In his witness statement filed on the 13/5/2024, Respondent claimed he set up the Petitioner in 2017 with GH₵1,500.00 but the business collapsed under her care. It is the claim of the Respondent that the Petitioner had extra marital affair when he travelled to visit his sick father. That any misunderstanding between them ends up at the police 3 | Page station, as such he moved out of the room he shared with the Petitioner. Respondent further insist that he takes care of the welfare of the children by way of paying their school fees at Fynn Upgrade School and other necessaries of life. Attached and marked as Exhibit ‘1A’, ‘1B’ and ‘1C’ are receipts indicating GH₵200, GH₵20.00 and GH₵150.00 respectively as prove of payment of fees when scrutinized carefully, it bears the names Fynn Upgrade School dated 10/10/2023, Ishaque Eshun dated 2/8/2021 and Kassim Eshun dated 23/05/2016 in that order. Further to this Respondent stated that he acquired his two (2) plots of land and built the house to lintel level at Modern City, Prestea before marrying the Petitioner and denied the claim of the Petitioner contributing to the construction of the building. When cross examined, the Respondent admitted to giving between GH₵100.00 and GH₵150.00 each week for the upkeep of the children. The Respondent at page 9 of the Records of Proceedings admitted he had not had sex with the Petitioner for over four years and also to the effect that he has physically abused the Petitioner which ended up at the police station of which he was cautioned. In his witness statement filed on the 13/05/2024, RW1, Isaac Bafo indicated he knew the parties to the suit and that the Respondent is a friend. RW1 states that Respondent approached him in 2009 and assisted him purchase a plot of land at Modern City from one Nana Baidoo. That Respondent gave him money in bits to enable him construct his house to lintel level before he married his wife in 2011. RW1 however admitted that the Petitioner comes to the site when the construction of the building at Modern City was ongoing but refuted the claim that Petitioner carried water and mortar. When it was the turn of RW2, Issaka Alidu, Respondent indicated in Court that RW2 is unable to attend Court to be cross examined. In line with the rules of procedure the 4 | Page witness statement of RW2 stands withdrawn as he is unavailable to be cross examined on his statement. The issues for determination is whether the marriage between the parties herein has broken down beyond reconciliation and if so whether the Petitioner is entitled to an equitable share of the spousal property as claimed by the Petitioner as jointly acquired. The principal enactment and provision dealing with matters of divorce is Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) and it states: “The sole grounds for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. Further to this Section 2(1) of Act 367 provides the facts to be proved to determine that the marriage has evidentially been proven to have broken down beyond reconciliation. The facts includes adulterous behaviour of a party, desertion, unreasonable behaviour, failure to live together as husband and wife for 2 years or 5 years and inability to reconcile differences. It is further the duty of the Court to delve into the facts alleged by the Petitioner and the Respondent. In as much that the facts points to one or more of the grounds as enumerated above, the Court is duty bound to evaluate the evidence and be satisfied that indeed the marriage has broken down beyond reconciliation. See Section 2(2) and (3) of Act 367. In the evaluation of evidence according to law in the reception of evidence the burden is placed on the party deposing to their claim or defence. The party can only succeed in his claim or defence by establishing a fact or element of the claim or defence to the satisfaction of the trier of facts. The principle on allocation of evidence of proof are contained in the Evidence Act, 1975 (NRCD 323), Section 14 and states: 5 | Page “14 Except as otherwise provided by law, unless 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.” My understanding is that, the party who has the burden to proof facts by way of evidence will fail if it is by mere or bare assertion without adducing evidence in support of that assertion. Both parties have the same burden if it shifts to the other party to avoid a ruling against the party with the burden on that issue. See Zabrama v Segbedzi (1991) 2 GLR 221 SC. The standard in proving that assertion by way of evidence is by the preponderance of probabilities or balance of probabilities. Section 10 of Act 323 states: “10(1) For the purposes of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the Tribunal of fact or the Court. (2) The burden of persuasion may require a party to raise reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt” A party where the onus is upon him must proof is assertions by way of evidence so that his assertion is more likely than not as being true than being untrue. From the evidence before this Court it has come to the fore that the parties have not had sexual intercourse for the past four years. It has been further ascertained that there are misunderstanding between the parties that has landed them on more than one occasion at the police station, which was admitted by the parties without it being controverted. This amount to the inability of the parties to reconcile their differences. 6 | Page Further to this, the Respondent exhibited unreasonable behaviour by claiming the Petitioner to be a witch who has spoiled his “juju” and this has further deepened the irreconcilable differences between the parties. Further, it is unreasonable behaviour for the Respondent to rain insults on the Petitioner including the physical abuse which always lands the parties at the police station. Such unreasonable behaviour is a conduit that gives rise to injury to life, limb or health or conducts that give rise to reasonable apprehension of such danger. As deduced from the evidence such conduct is grave and weighty evidence by the police involvement in the matter. This makes living together impossible. Such abuse has been determined by the Court as serious and higher than the normal wear or tear of married life. The proven assertion by way of evidence lay credence to the fact that Petitioner cannot reasonably be expected to live with the Respondent as a result of the bad behaviour of the Respondent. See Andrew v Andrew [1974] 3 ALL ER 643. Pursuant to section 21 of Act 367 I am satisfied by the preponderance of probabilities that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent as such the marriage has broken down beyond reconciliation. I am hereby inclined to grant the first relief of the Petitioner and to state that Mohammedan marriage between the parties is hereby dissolved as the said Mohammedan marriage has broken down beyond reconciliation. Now I move to the second issue for determination whether the Petitioner is entitled to an equitable share of the property as claim by the Petitioner as jointly acquired. It must be noted that Section 14 of Act 323 depose to the law that a party who has the burden to proof facts by way of evidence will fail if it’s by a bare assertion without adducing evidence in support of that assertion. The Petitioner claim that the property acquired was jointly acquired, thus spousal property must lead evidence to that effect. 7 | Page Article 22 of the 1992 Constitution stipulates and I quote; “22(1) A spousal shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will. (2) Parliament shall as soon as practicable after the coming into force of this constitution, enact legislation regulating the property rights of Spouse. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article. (a) Spouses shall have equal access to property jointly acquired during marriage. (b) Assets which are jointly acquired during marriage shall be distributed equitably between the Spouses upon dissolution of the marriage”. The rational of the provisions under Article 22 is to avoid hardship being caused to a Spouse in the distribution of property jointly acquired during marriage upon dissolution of the marriage. To do justice to the matter I now proceed to determine what is meant by spousal property or jointly acquired property. In Peter Adjei v Margaret Adjei (J4/06/2021) unreported SC (21/4/21) Appau delivering the majority opinion stated thus with regard to spousal property; “The combined effect of the decisions referred to supra is that; any property that is acquired during the subsistence of a marriage be it Customary or under English or Mohammedan, Ordinance is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on the equality is equity principle. The presumption of jointly acquisition is however, rebuttable upon evidence to the contrary 8 | Page [See the Arthur case supra, holding (3) at page 546]. What this means in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as “jointly-acquired” property to be distributed at all cost on this equality is equity principle. Rather it is property that has been shown from the evidence adduced during the trial to have been jointly acquired irrespective of whether or not there was direct pecuniary or substantial contribution from both spouses in the acquisition. The operative term or phrase is property “jointly acquired during the subsistence of the marriage” [Emphasis mine]. So where a spouse is able to lead evidence in rebuttal or to the contrary, as was in the case of Fynn v Fynn, the presumption theory of joint acquisition collapses. My understating of the above is to the effect that for a party to prove that the property acquired during marriage was jointly acquired must lead evidence to prove same and not by mere or bare assertion without no further proof. Such proof must be demonstrated by way of pecuniary contribution towards the acquisition, other overt substantial contribution towards the acquisition and not by bare assertion without further proof. Petitioner claimed that the property being a seven (7) bedroom house with a hall at Prestea - Modern City sharing common boundaries with the properties of uncle Atta, Emmanuel Cudjoe and Auntie Akisi was jointly acquired and as such wants an equitable share was not proofed to be jointly acquired by way of money or substantial contribution. The only close call is sighted at page 4 of Records of Proceeding when cross examined by the Respondent and its instructive to quote: “Q. You wrote in your witness statement that we jointly build a house, can you tell the Court how we built that house. A. It is when we got married that we bought a plot of land and built on it. 9 | Page Q. What is your contribution towards the building of the house. A. I carried water to the site for the workers to work with it. I also carried sand to the site, sometimes too I go to supervise the workers when they are working. Q. Do you have witnesses that can testify to the fact that you do sometimes go to the site to supervise the workers. A. The Mason and my brother are witnesses”. When the Mason was cross examined as RW1 he denied the claim of the Petitioner as assisting in building the house by way of carrying water and mortar and asserted that the Respondent gave him money to hire workers for the project. However, the current position of the law is that, it is no longer essential for a spouse to prove a direct pecuniary or substantial contribution in any form to the acquisition of marital property to qualify for a share. It was sufficient if the property was acquired during the subsistence of the marriage. However, where such evidence exist, it is necessary that a spouse alleging such a contribution must render or offer it to qualify her share or portion in the property so acquired on the equity principle (Emphasis mine). There 12 rational behind this position was that the duties performed by the wife in the home by way of cooking for the family, cleaning and nurturing the children of the marriage etc. which go a long way to create an enabling atmosphere for the other spouse to work in peace towards the acquisition of the properties concerned was enough contribution that should merit the wife a share in the said property. See Adjei v Adjei (supra). I have perused the Records of Proceedings and its evidential that the Respondent acquired the land before getting married to the Petitioner. Further to this, it is also 10 | Page evidential that in the cause of the construction of the matrimonial home that the Respondent got married to the Petitioner. The Petitioner provided support by way of washing Respondent’s cloths as well as cooking for him as such had free hands to acquire those properties. Based on Section 14 of NRCD 323 which provided that except as otherwise provided by law, unless 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. It is here that the decision says that non-pecuniary contribution in the form of emotional support, unpaid domestic services such as cooking, washing and caring for the children of the marriage are admissible as proof of contribution. See Adjei vrs Adjei (supra). Based on the position of the law as enumerated supra, it is ascertained and stands uncontroverted that the Petitioner contributed to the acquisition of the marital property by way of washing and cooking and caring for the children of the marriage. However, it is also deduced from the evidence that the Respondent acquired the land upon which the marital property was constructed before the marriage. With the issue of maintenance of the three children of the marriage, Section 2(2) of the Children’s Act 1998 (Act 560) stipulates that 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. It is hereby mandated upon me to consider the best interest of the children of the marriage as my primary consideration. Such consideration shall be their welfare in the form of the right of life, dignity, respect, leisure, liberty, health, education and shelter from his parents. Further to this no person shall deprive a child of reasonable provision out of the estate of a parent whether or not born in wedlock. See Sections 6 and 7 of Act 560. 11 | Page I shall therefore and it is a duty imposed upon me by law to ensure that adequate provisions are made for the welfare of the children to the marriage. It is worthy of notice that the Respondent has disconnected electricity to the house and further to this the Respondent has not satisfied the Court to disprove the assertion of the Petitioner that the Respondent has neglected his responsibilities towards the children. Section 20 of Act 367 states: “20 Property settlement (1) The Court may order either party to the marriage to pay to the other party a sum of money or conveyance 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. (2) Payment and conveyance under this section may be ordered to be made in gross or by installments” I am mindful that matrimonial matters are fraught with all manner of sentiments on the part of the parties but at the end of the trial I must exercise my discretion in accordance with law. As the constitution clearly states in Article 296, every discretion vested in any person or authority requires that the person or authority and in this case I myself shall be fair and candid; that the power shall be not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law. See Obeng v Obeng (J4/37/15) [2015] Akamba JSC. I hereby determine the matter in accordance with law and not having any sentimental attachment to any of the parties. I am further guided that a Court should only order a lump sum payment when the husband or Respondent has capital assets out of which to pay without crippling his 12 | Page earning power. When there are available assets sufficient for the purpose, the Court shall not hesitate to order him to pay a lump sum. Such payment shall be outright and not subject to conditions except where there are children when it may be desirable to make it the subject of a settlement. See Obeng v Obeng (supra). Being fortified with the above legal position and in consideration of the evidence adduced by the parties during trial, I hereby enter judgement in the matter for the parties without prejudice to the entirety of the judgement thereof and I hold and declare as follows: 1. It is hereby ordered and order is given henceforth that the marriage celebrated between the Petitioner and Respondent stands dissolved forthright as having broken down beyond reconciliation. 2. The Respondent is further ordered to pay forthwith to the Petitioner in lieu thereof property settlement an amount of GH₵40,000.00 as financial provision. 3. It is further ordered and order is hereby given to compel the Respondent to provide the necessaries of life to the three children of the marriage namely; Kasim Eshun, 13 years, Ishaque K. B. Eshun, 10 years and Adisatu Eshun, 5 years including health, education, clothing, shelter etc. for the avoidance of doubt in respect of shelter, the Respondent is ordered to cede two (2) rooms of the seven (7) bedroom with a hall located at Modern City – Prestea, sharing boundaries with the properties of uncle Atta, Emmanuel Cudjoe and Auntie Akisi to the three children until they become adults and further able to fend for themselves. 4. It is further ordered that the Respondent maintain the three children at GH₵1,500.00 each month until it is varied upon application and also to become adults be able to fend for themselves. 13 | Page 5. Cost of GH₵2,000.00 is awarded in favour of the Petitioner against the Respondent. (SGD) H/W. IDDI ADAMA, ESQ. (DISTRICT MAGISTRATE) 14 | Page