Boahene v Ampedu (CR/OF/DC/A4/273/2023) [2024] GHADC 682 (12 November 2024)

IN THE DISTRICT COURT KASOA-OFAAKOR SITTING BEFORE HER WORSHIP LINDA AMISSAH ON TUESDAY THE 12TH DAY OF NOVEMBER, 2024. SUIT NO. CR/OF/DC/A4/273/2023 ABIGAIL BOAHENE ………. PETITIONER VRS KWESI AMPEDU ………. RESPONDENT JUDGMENT The petitioner petitioned this Court for the dissolution of her eighteen- year customary marriage. There are three issues of this marriage. The petitioner prayed for the following reliefs: • An order for the dissolution of the customary marriage. • An order compelling the respondent to compensate her with ghc100,000 • An order for an equal share of the properties acquired during the subsistence of the marriage which are: ▪ Two bedroom house at Nyanayano Kasoa ▪ A plot of land at Millenium City- Goma Fetteh ▪ A KIA SOL Saloon Car ▪ A share in their building materials business 1 • Any orders the Honourable Court deems fit • Costs. The respondent filed an answer to the petitioner on the 28th April, 2023. CASE OF THE PLAINTIFF It is the case of the petitioner that everything was going on smoothly in the marriage until five years ago, when the attitude of the respondent changed in that he began sleeping outside the matrimonial home. Anytime she complained, the respondent became offended and engaged her in a heated quarrel. In 2022, she reported the conduct of the petitioner to a reverend minister who attempted to assist them in reconciling their differences. The respondent, however, did not take a new leave. At a family meeting, the respondent informed the family that he wanted them to live apart and that he was ready to rent a place for her. The family agreed that the parties live apart for a month. After a month, when she returned to the matrimonial home, the respondent drove her out. In March 2023, again she attempted to return to the matrimonial home; this time, the respondent not only threw her out but also threw out all her personal belongings. CASE OF THE RESPONDENT It is the case of the respondent that the parties were married eighteen years ago. About five years ago, he built a two - bedroom house and moved into the house together with the petitioner. The petitioner convinced her to fire his shop attendant and allow her to man the shop. When she took over the management of the shop, she collapsed the business and used the capital of the business to construct a metal container. When he questioned her about the collapse of the business, the petitioner changed her attitude. 2 She began sleeping outside the matrimonial home with the excuse of going to church. She stopped cooking, stopped doing the laundry and denied him sex and as if that was not enough, she moved out of their bedroom into another room. The petitioner is also aggressive. On one occasion, she went to the home of a lady named Gifty and threatened to kill her because she alleged she was destroying her marriage. It was as a result of this incident that the petitioner’s mother asked her to come and live with her for a month. However, the petitioner stayed for more than a month. On her return, she tried fighting him. This caused him to lock her out. As provided in Section 1 (2) of the Matrimonial Causes Act, the sole ground for granting a Petition for divorce shall be that the marriage has broken down beyond reconciliation. For the purposes of showing that the marriage has broken down beyond reconciliation, a petitioner shall as provided in Section 2(1) of the Matrimonial Causes Act prove to the satisfaction of the court one or more of six facts. The section of the Act material to this petition is Section 2(1) (f) of the Matrimonial Causes Act. Section 2(1)(f) of the Matrimonial Causes Act provides that one of the facts for which a marriage can be dissolved is: that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. In the present case, it is evident that the parties have had issues which their family members and a clergyman have not been able to resolve after making attempts to do so. It is these issues which led to the petitioner to leave the matrimonial home to live elsewhere for a month. Unfortunately, living apart could not solve these issues. Moreover, it appears that even when they were both living in the matrimonial home, at a point in time, they were living in separate rooms. This is also an indication that the parties had issues that they could not resolve. From the conduct of the parties, it is clear that the marriage has broken down beyond reconciliation. 3 SPOUSAL PROPERTY The Supreme Court in Nana Yaa Konadu v. Alhaji Abdul Rasheed (unreported), Civil Appeal No. J4/06/2017, dated 18th November 2020, stated among others that under the current state of the law, once property is acquired by a couple during the subsistence of their marriage, there is a presumption that the property was jointly acquired and therefore jointly owned irrespective of the spouse in whose name it was acquired…” Again, the Supreme Court, per Date Bah, JSC, in the case of Arthur v Arthur held: “Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition…It should be emphasized that in the light of the ratio decidendi in Mensah v. Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage” Then also, in the more recent case of Peter Adjei v. Margaret Adjei, Civil Appeal No. J4/06/2021 dated 21st April 2021, Appau JSC once again revisited the same issue and clarified as follows: “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 marriage’, So, where a spouse is able to lead evidence in rebuttal or to the contrary, the presumption theory of joint acquisition collapses.” 4 With the law on spousal property set out, I will now examine the evidence led on the alleged spousal properties. TWO BEDROOM HOUSE AT NYANAYANO KASOA The petitioner prayed for an equal share in this property. The respondent admitted they have a two-bedroom house at Nyanayano which is the matrimonial home. A PLOT OF LAND AT MILLENIUM CITY- GOMA FETTEH The petitioner prayed for an equal share in this property. The respondent denied that there was any such property. KIA SOL SALOON CAR The petitioner prayed for an equal share in this property. The respondent denied owning the vehicle and stated that the vehicle belongs to someone else who asked him to sell the vehicle for him. PART OF THE PARTIES BUILDING MATERIALS BUSINESS The petitioner again prayed the court for an equal share in the building materials business. 5 While concurring with the lead Judgment of the Court delivered by Appau JSC in the Peter Adjei case, supra, Pwamang JSC reiterated that, this presumption of joint ownership was not created by the 1992 Constitution, but was a judicially created presumption, which makes it a rule of evidence only. And as such, it does not confer substantive rights. This is what Pwamang, JSC, had to say: “Being an evidential presumption, it is rebuttable by the spouse whose ostensible property is in question or any person challenging the presumption by adducing evidence to prove that the other spouse contributed nothing in the acquisition of the property… When sufficient evidence in rebuttal is introduced by the spouse who is the ostensible owner of the property, or a party challenging the presumption, the evidential burden shifts onto the other spouse to also introduce any evidence of her contribution to the acquisition of the property” In the case of KOTEI V. KOTEI (1974) 2 GLR 172, the Court held that “proof of five years continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the dissolution of the marriage.” Therefore, I find that the parties have not lived as man and wife in terms of Section 2 (1) (e) of Act 367. It is clear from the evidence that the parties have moved on and I so find. Additionally, the parties in spite of attempts by their respective families have been unable to reconcile their marital differences in terms of Section 2(1) (f) of Act 367 and so I find. 6 Consequently, on the totality of the evidence, I find that the marriage has broken down beyond reconciliation and I decree the customary marriage celebrated between the parties at Akropong in October 2001, dissolved. I will now proceed to consider the ancillary reliefs. The Petitioner is seeking custody of the only issue of the marriage. The said issue by name Gideon Osei Owusu is now 21 years old. He is in college in the UK where he is ordinarily resident. Under section 1 of the Children’s Act 1998 (Act 560), a child is a person below 18 years. The Respondent is not contesting custody of the said issue. The said issue is an adult but because he is still in school, the Petitioner is granted custody of Gideon Osei-O William E. Offei’s book, Family Law in Ghana, Fourth Edition, Page 172. Writing under the topic, ‘Dissolution of Customary Marriages’, he stated under the sub-heading, ‘Method of Dissolution’ that; “The relatives of the two (2) parties meet and when all efforts at reconciliation fail, those assembled, known as Baguafo ask the parties which of them has lent anything to the other party. Any borrowed item must be returned to the partner who lent it, except that the man may say that even though he lent a particular item or particular items to the wife, he does not intend to claim it or them back. The wife may do likewise. The only item that must be returned to the husband is the Ti Nsa or head money which he paid, at the time of the marriage, to the wife’s family. If the dissolution of the marriage was due to the man’s fault, he will be requested by the Baguafo to ‘send off’ (i.e. compensate) the wife. If on the other hand, the wife’s default e.g. prostitution or adultery occasioned the dissolution, she will be required to ‘send off’ the husband. The dissolution is sealed by the ceremony called hyirewgu or powdering. A member of the Baguafo takes white powder in his hand and puts it on the shoulder of the wife. He says to her: “Nne yeama wo hyirew. Yene wo nni 7 asem biara bio.” This may be translated thus “Today we have powdered you. We have no matter with you again”. The speaker then hands over the woman to her family, and that ends the ceremony. It must be noted that the speaker does not spread the powder over the whole body of the woman.” Similarly, in the case of ATTA V. ANNAN (1975) 1 GLR 366, the court held in respect of a customary marriage in which the grandfather of the wife sought to forcibly terminate the marriage that; “…the marriage could be terminated, only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) had been conducted to find out whether any of the spouses had committed any marital offence. If an offence was proved, it was the duty of the arbitrators to try their utmost to effect reconciliation between the spouses in a genuine attempt to salvage the marriage especially where there were issues of the marriage. After the arbitrators had ruled that the situation called for divorce, the spouses must then be given an opportunity to show whether any of them owed any amount or had any property belonging to the other. After settling all legitimate accounts between the spouses, the final act of divorce was then performed by the husband releasing her from conjugal obligation, either by chalking her or saying so in the presence of the gathering”. SGD (H/W LINDA AMISSAH) MAGISTRATE 8