Tetteh v Tetteh (A4/07/23) [2024] GHADC 733 (1 November 2024)

IN THE DISTRICT MAGISTRATE COURT HELD AT SUHUM ON THURSDAY 1ST DAYOF NOVEMBER, 2024BEFOREHERWORSHIP CYNTHIAEMEFA OHENE. SUITNO: A4/07/23 DIANA TETTEH SUHUM ……………….. PETITIONER VRS ISAACKWASI TETTEH SUHM ………………… RESPONDENT PARTIES-PRESENT EMMANUEL KPATAKA HOLDING BRIEF FOR EBENEZER AHUMAH SACKEY, ESQFORRESPONDENT-PRESENT JUDGMENT The Petitioner issued out herPetition claiming against theRespondent asfollows: 1. An order for dissolution of the Court Marriage celebrated at the District Court, Suhumon4th December, 2019. 2. An order for the cancellation of the Marriage Certificate number SDMC/117/2019 and License Number SDMC/204/2019. 3. AnyOrder(s) orreliefs the Courtmay deemfit. To the Petitioner’s Petition, the Respondent filed an Answer and also Cross-Petitioned asfollows: 1. An order of this Honourable Court for the marriage between parties contracted in2019be annulled and/or dissolved. 2. Costs. 1 The case of the Petitioner is that the parties got married under the ordinance CAP 127 on 2019 at the District Court, Suhum. After the marriage, the parties cohabited at Suhum. That themarriage produced one issue. The Petitioner asserts that the Respondent had been assaulting her physically for the past 7 months. According to the Petitioner, the Respondent stopped her from sleeping in the same room with him and for the past 7 months the respondent does not sleep in thematrimonial home. The Petitioner further asserts that they first got married in 1998 at the Wesley Methodist Church, Suhum but divorced before getting married again but now under the ordinance in2019afterthe respondent came tobeg her toreturntothe marriage. The Petitioner asserts that the Respondent family does not know what is going onin the marriage because theyknowthis is notthe first ofits kind. The Respondent per his Answer to the petition and cross-petition asserted that it was rather the Petitioner who assaulted him and he reported the matter to the Suhum Police. The Respondent avers that it was the Petitioner who personally decided to move into one of the rooms meant for tenants as part of her denial of conjugal relationship with him. That the marriage was dissolved and remained as such for over two years before the Petitioner came back and deceived him into contracting the current marriage after the Petitioner came begging that they should re-marry. According to the Respondent he has neverabandoned his matrimonial home atany material time. The respondent averred that he first married the Petitioner under the customary law in 1998, but the Petitioner had that marriage dissolved in 2017 and she came back feigning repentance and remorse to re-marry her under ordinance, which he did without any suspicionthat thePetitioner had sinister and diabolical intentions. 2 According to the Respondent it has become clear that the Petitioner’s return was part of a grand scheme devised to enable her make claims against properties that the he had acquired afterthe first marriage and before this current one. The Respondent further asserted that he lived as husband and wife with the Respondent for one year after contracting the current marriage and she started denying himconjugalrightswhile openly engaging in amorous relationships withothermen. At the trial, the Petitioner gave evidence and called no witness in support of her case. The Respondent also gaveevidence and called no otherwitness in supportofhis case. EVIDENCE OF PETITIONER The Petitioner told the court in her evidence in chief that she first got married customarily to Respondent in 1998 at the Wesley Methodist Church, Suhum but they divorced when the Respondent went in for another woman. That they went their separate ways but respondent came to beg her and she agreed to come back to the marriage. That their marriage was subsequently converted to ordinance marriage on 4th December 2019 at the District Court, Suhum. That the parties have one issue namely; Belinda Tetteh. She stated that they lived at a rented house at Suhum until they moved intotheir ownmatrimonial homethey jointlyacquired atDr. Mabel, Suhum. For a very long time, the Respondent had been physically abusing her and the Respondent assaulted her whenever she was pregnant and which had caused her to have several miscarriages which explains why they had only one issue in the marriage. That the Respondent had been threatening with a divorce and all efforts by both families to resolve their differences proved futile. That the Respondent stopped eating herfood andhe had denied her sexfor acontinuousperiod of3years. Together with the Respondent, they acquired a two bedrooms self-contained apartment with porch at Methodist Primary, Ayekotse, Suhum. Another two bedrooms self- contained and a five chamber and hall apartment at Dr. Mabel, Suhum where they both 3 reside currently and a cocoa farm at Akorabo, a plot of land at top oil, a plot of land at Dr. Mabel and a plot of land at Zerfito junction, Suhum. That they acquired six kia trucksforcommercialpurposes. She concluded that the Respondent also caused her emotional torture, pain and agony just so she could leave the matrimonial home since maintaining the family was difficult for him. That the respondent has used her, messed up her life and preventing her to enjoyheryouthfuldays. EVIDENCE OF RESPONDENT The respondent in his evidence in chief stated that he had married the petitioner in the year 2000 under the customary law and they had a daughter. He said the petitioner came into the marriagewith asonshe had in herprevious relationship. Respondent attested that he opened a provision shop for the petitioner and also supported her to further her education. He said that things became difficult for him but he was able to support the petitioner to pursue a course in catering and after she completed the school he bought an oven and other necessary equipment for her amounting toGHS10,000.00 Respondent attested that without provocation the Petitioner told him that she was no longerinterested in the marriage and left the matrimonial home. Respondent said afterthe dissolutionoftheir customarymarriage the Petitioner left him for2years. Respondent said in 2019 he married the Petitioner again under the ordinance and he gave Petitioner an amount of GH¢3,000.00 to start a business. Respondent said that he started noticing certain behavioral traits of the Petitioner just after their second marriage. 4 Respondent testified that the petitioner does not perform her conjugal duties as a wife, she doesnot cookforhim and had denied himsexualintercourse. Respondent said he came back from work one day and heard an argument between the Petitioner and her son concerning a man that the Petitioner brought to their matrimonial home on two occasions. He said the petitioner brought her boyfriend into the matrimonial home and cook for him and slept over with him at the matrimonial home. Threatenedhim thathe will takethe matrimonial home fromhim. ISSUES 1. Whether or not the marriage between the parties has broken down beyond reconciliation? 2. Whether or not the properties mentioned during the trial are matrimonial property. EVALUATIONOF EVIDENCE AND LAW Sections 10,11and 14 oftheEvidence Act, 1975(NRCD 323)puts the burdenofprooffor the resolution of the issues on the Petitioner. A person who makes an averment or assertion has the burden to establish that his averment or assertion is true. He does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. See Majolagbe v Larbi & ORS [1959] GLR190. The sole ground for granting a petition fordivorce shall be that the marriage has broken down beyond reconciliation. Under Section 1(2) of the Matrimonial Causes Act, 1971, (hereinafter called Act 367) the Petitioner would have to satisfy the Court that the marriage hasbrokendown beyondreconciliation. 5 Section 2 (1) of The Matrimonial Causes Act 1971, 367 provides that, “for the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy theCourtofone ormore ofthe following facts: a) That the respondent has committed adultery and that by reason of the adultery thePetitioner finds it intolerable tolive withthe Respondent; b) That the Respondent has behaved in such a way that the Petitioner cannot reasonablybe expectedtolive withthe Respondent; c) That the Respondent has deserted the Petitioner for a continuous period of at least twoyearsimmediately preceding the presentationofthe Petition; 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 paragraphnotwithstanding the refusal; 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; f) That the parties to the marriage have after diligent effort, been unable to reconcile their differences”. 1. Whether or not the marriage between the parties has broken down beyond reconciliation? Section 2 (1) (f) of the Matrimonial Causes Act 1971 Act 369 states that “for the purpose of showing that the marriage has broken down beyond reconciliation thePetitioner shall satisfy theCourtofone ormoreofthe following facts: That the parties to the marriage have after diligent effort, been unable to reconcile their differences”. 6 The Petitioner clearly stated under paragraph 12 of her witness statement that the love between her and the respondent had gone sour and that the Respondent had threatened her with divorce and that they were unable to resolve their differences despite numerous efforts by their family members and the church leaders. This honourable further referred to Section 2(1) (b) of Act 369 which states that ‘That the Respondent has behaved in such a way that the Petitioner cannot reasonablybe expected to live withthe Respondent; The petitioner under paragraph 10 of her witness statement stated that the respondent was physically abusive leading to her miscarriages. Petitioner stated that on one occasion the respondent assaulted her and she fell unconscious. The Court noted under paragraph12 of the Respondent’s witness statement that the petitioner does not cook for him but leaves the matrimonial home and comes without informing therespondent under paragraph13respondent statedthat the petitioner refused to have sexual intercourse with the Respondent. Respondent exhibited a police investigation report where it was alleged that the petitioner threatened tostabthe respondent if he failed to give herdaily stipends. This Court further refers to the following case Happee v. Happee [1974] 2 GLR 186,Cooperv Cooper [1955]P99,Mensah v.Mensah[1972] 2GLR 198. This court gleaning from the above analysis of the evidence before the court is of the view that the marriage between the parties had broken down beyond reconciliation. 2. Whether or not the properties mentioned during the trial are matrimonial property. 7 The Petitioner in this dispute did not pray the Court for property settlement but rather stated that she jointly acquired some properties during the pendency of the Marriage under paragraph18to21ofherwitness statement. Article 22 (3) (a) and (b) of the 1992 constitution provides that (a) spouses shall have equal access to property jointly acquired during marriage and (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upondissolutionofthe marriage. It is trite law that no two cases are the same and the Supreme Court has by its decisions, laid down some principles to guide the courts in the application of the law regarding the distribution of jointly acquired properties during marriage upon divorce. In Mensah v Mensah [1998-1999] SCGLR 350 Banford-Addo, JSC held that “property jointly acquired during marriage would become joint property of the parties and such property should be shared equally on divorce because the ordinary incidents of commerce had no application in marital relations between husband and wife who had jointlyacquired propertyduring marriage” In the case of Fynn v Fynn [2013-2014] SCGLR 727, the Supreme Court distinguished the right of an individual to acquire a property from its earlier decisions rendered in Mensah v Mensah and Quartson v Quartson. The Supreme Court held that there are situations where, within the union, parties may acquire property in their individual capacities. This position of the Supreme Court supports Article 18 of the 1992 Constitution, which states that “every person has the right to own property either alone orin association withothers”. The Petitioner inher testimony failed toadduce evidence tothe acquisitionofthe jointly acquired marital property, In the second case of Mensah v Mensah Dotse JSC introduced the presumptive ownership principle, which was affirmed in Arthur v Arthur by Date-Baah JSC which states that ” the Supreme court in Mensah v Mensah had interpreted the provision in article 22 (3) (b) of the 1992 Constitution to mean that 8 joint acquisition of assets was not limited to property that had been acquired as joint or as common tenants; but rather any property acquired by the spouses during marriage waspresumed tobe marital property. It is also worth mentioning that where evidence exists, it is important for a party who alleges a contribution to the property in the marriage to adduce evidence in order toqualify for ashare in the property so acquired onthe equityprinciple. In MENSAH V MENSAH [1998-99] SCGLR 350, the Supreme Court speaking throughBamford Addo JSC(as she thenwas) at page355held: “the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce; because the ordinary incidence of commerce has no application in marital relations between husbandandwife who jointlyacquired propertyduring marriage.” The Court noted with concern that the Petitioner though having led evidence to the fact of the acquisition of a property jointly within the ordinance marriage did not endorse same as a relief when she filed her petition. The Court further noted that Petitioner did not request for property settlement when the Customary marriage was dissolved in 2017. The following ensued during cross examination of the Petitioner by counsel for the Respondent: Q: You stated that after the marriage you lived with the Respondent in a rented house is thatthe case? A: That istrue. Q: I am putting to you that before the marriage you contracted in 2019 the Respondent alreadyhashis personally acquired house. A: That is not true it was the property we jointly acquired and he moved me out of it. 9 Q: I am putting it to you that the two of you never acquired any house at Doctor Marblearea during the pendency ofthis marriage? A: That isnot true it was thepropertythat we were living in. Q: You told the court that your intention of coming back into the marriage was because youwant toshare the property acquired by the respondent. A: That isnot true I was demanding my share ofthe propertieswe jointly acquired. Q: At paragraph 18 of your witness statement you stated that you jointly acquired 2 bed room self-contain and 3 single room apartment and another 2 single room apartmentat Topoil is thatcorrect? A: That is not true. It was a two bedroom self-contain apartment and 2 single room apartments. Q: Which yeardid youbuild this property together? A: Webought it in2003. Q: So you are telling the court that this property was acquired before the pendency ofthis marriage? A: Yeswe bought it before 2019. Q: Iam putting it toyouthatthe respondent doesnot haveany propertyat topoil. A: That isnot true. Q: At paragraph 19 of your witness statement you stated that you build another 4 halland chamber at Methodist Primary Ayekotse? A: Yes. Q: You will agree with me that this property at Methodist primary was acquired before2019. 10 A: Yes. Q: I am putting it to you that the respondent does not have any property at AyekotseMethodist Primary. A: That isnot true. Q: At paragraph 20 of your witness statement you stated that you jointly acquired a 2bedroomself-contain anda5hall and chamber apartmentat DoctorMarble. A: That istrue. Q: You will agree with me that this property at Doctor Marble was acquired before 2019. A: Yes. FINDINGOF FACT The Courtmade the following finding offacts: 1. That the parties in this suit contracted another marriage under Cap 127 on 4th Decemberin 2019 2. That themarriage between theparties has brokendownbeyond reconciliation. CONCLUSION This Honourable Court having studied the processes and the evidence before the Court is of the opinion that the marriage has broken down beyond reconciliation. The Court 11 hereby decrees that the marriage between the parties contracted on the 4th December 2019 at the District Court Suhum is dissolved. The Court further cancels the marriage Certificate Number SDMC/117/2019ANDLicence Number SDMC/204/2019forthwith. The Courtwill makethe following orders: 1. The Courthereby settlesthefollowing properties in favourofthe Petitioner 2. The 2-bedroomself-contained apartment and 2single roomapartmentsituated at TopOilarea is settledinfavour ofthePetitioner. 3. The Court further orders the Respondent to pay the Petitioner an amount of GH¢5,000.00as compensation. (SGD) H/WCYNTHIA E.OHENE MAGISTRATE 12