Ashon Vrs Ashon [2022] GHACC 117 (30 November 2022)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST, CENTRAL REGION ON WEDNESDAY 30TH DAY OF NOVEMBER, 2022 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE _____________________________________________________________________ SUIT NO. C4/07/2020 DR. GRACE ASHON ... PETITIONER SIWDU COMPOUND, CAPE COAST VRS DANIEL ASHON ... RESPONDENT CAPE COAST ______________________________________________________________________ JUDGMENT INTRODUCTION The Petitioner seeks the dissolution of the marriage celebrated on August 12, 2007, between herself and the Respondent. Per the petition, the petitioner is praying for the following reliefs; 1. That the said marriage between the parties be dissolved. 2. That custody of all issues be granted to the Petitioner with reasonable access by the Respondent. Page 1 of 18 3. An order by the Honourable Court to order the Respondent to provide all the necessaries in life to the issues. 4. Any other relief(s) that the Honourable Court may deem fit to make. Petitioner, a medical officer at Cape Coast Teaching Hospital, testifies that she lived with the respondent and had two children before they got married in 2007 and after the marriage they had two more children. After the marriage, they cohabited at Takoradi before they relocated to Cape Coast. She said the Respondent is a businessman and since last year May 2019, their marriage has broken down beyond reconciliation. She particularised her petition on adultery and stated that the Respondent engaged in debauch activities of adultery. She mentioned that the Respondent sexually harassed her younger sister but her mother tried to settle the matter. She stated further that the Respondent slept with their maidservants and had a long sexual relationship with one Sophia a maidservant and the daughter of the Respondent’s Nanny. She mentioned that the Respondent also had sexual relationship with one Winifred a hairdresser at Takoradi who confessed to the Petitioner during the Petitioner mother’s funeral that the Respondent promised her so many things which never materialised. According to the Petitioner, she contracted infections because of the Respondent’s sexual habits and she treated herself but could not continue to be taking antibiotics so she denied the Respondent sex. The Petitioner continued that both of them were taking care of the children until she left the matrimonial home. She has been maintaining the children before she filed the petition. She said worked as the District Officer for Shama District i the Western Region with the National Service Scheme before she enrolled at the Medical School. She worked till the fifth years and then resigned. Whilst a District Officer she helped the Respondent to get a contract to supply electronics to the National Service Officers across Western Region. She also helped him to raise the needed capital for Page 2 of 18 the business and the business sustained to a point but it collapsed when she was in the Medical School. She said the Respondent got an issue with the Scheme regarding his contract but she had another cleaning business so she was able to help take care of the family. She said the Respondent was still taking care of the family even though the business had collapsed but after a while they shared responsibilities where she had to pay two of the children’s school fees and Respondent took two. The respondent continued that she is asthmatic and sometimes she gets attacks so sedated herself and the Respondent will forcibly have sexual intercourse with her even when its difficult for her to breath. She asked him in the morning why he had sex with her in her state and he would reply that she is his wife and so he can do whatever he wants with her. According to the Petitioner, the actions of the Respondent give her stress and affected her productivity negatively at work which made her to collapse during surgery at work. She asserted that their families have attempted to settle their differences without success and prays that the marriage contracted between them be dissolved and for the court to grant her all her reliefs. The summary of Respondent’s evidence is that he met the Petitioner in Accra and that time she was a shop attendant at a Mobil Mart shop and had then completed SHS and had been at home for five years. He said during their relationship, he encouraged her to return to school. Her results was not good but that time UCC was introducing the biological sciences so they organised pre-admission tuition for the candidates where she passed the entrance exams and gained admission for her first degree in biological sciences. He continued that after her first degree, she worked with National Service and he was supplying the National Service personnel with electrical appliances. He denied having committed adultery with many women as alleged by the Petitioner. He continued that during the marriage, they acquired a Page 3 of 18 five bedroom house at Mpentsen, Sekondi –Takoradi which was purposefully built as their matrimonial home and for their children. He said the Petitioner acquired an uncompleted flats at Kasoa. According to the Respondent the house at Kasoa was the Petitioner idea and it was basically for rent to generate more revenue for the family. He supervised that project for her at Kasoa. He further stated that they had vehicles but the Petitioner has disposed off them already. He said he has four children with the Petitioner and he loves the children very much because he took care of them whilst the Petitioner was in school. He said he did all he could to give the Petitioner peace of mind to study whilst he took care of the children. He was the mother and father for the children and he also did all the house chores. He said they were a happy family and he celebrated her. She went for her Masters’ degree and he continued with his business supplying air conditions and other electrical appliances to companies and individuals. Later, his work slowed down and he was not financially sound and that was when their marital issues started. By then the Petitioner had completed her studies and working as a medical doctor. According to him, they had 4 cabinet air conditions, one 4door fridge, one 3 door fridge, two home theatres, two deep freezers, one 55inch smart T. V, and one 50inch T. V. When they were separated, the Petitioner requested and he agreed for her to take two of the cabinet air conditions and the 50inch T. V, 4 door fridge, the home theatre, and one deep freezer for her place. He said all the listed items are brand new appliances meant for their house at Sekondi. But later the Petitioner came to him and requested that the remaining items be put in her store room as he had not moved to his place. He had no place so he agreed but the Petitioner has since he had his place refused to return the items to him. He stated that for the love and good memory they shared, he wants the house at Sekondi to be given to his children. He however disagrees that the court grants custody of the children to the Petitioner since she does not have Page 4 of 18 time for them. He stated that, he is less busy and he can take good care of the younger ones. He trained the older ones and they can take care of themselves even in her absence but for the younger ones they should be given to him where the Petitioner can visit them anytime or they spent their vacation with her when she is available. He agreed to the divorce though reluctantly. The Respondent called one witness Kojo Nketia an electrician who testified that he got to know the parties at Takoradi when they were staying there and he became their electrician as they were all staying at the same suburb. He worked on their house at Mpentin and he was also engaged to work at their house at Kasoa at a place called Millenuium City. He worked on the house about three to four years ago and the Petitioner used to call him a lot regarding the house so he went there to do the electrical work. He said the house is a four flat storey building and he tendered in evidence a picture of the house. He continued that initially, it was the Petitioner who took him there to work but later the Respondent got involved. He worked there at different stages of the construction. He said the Petitioner mostly went him to purchase the materials for the electrical work but for the workmanship the Petitioner paid some and the Respondent also paid some. According to DW1, the last time he went to the place was when the Respondent was to pay him some money but refused so he reported to the Petitioner and she gave him the money. EVALUATION OF EVIDENCE AND APPLICATION OF LAW Page 5 of 18 The Supreme Court in ADWUBENG VRS DUMFEH [1996-97] SCGLR 660 crystallized the standard of proof required in all civil actions at holding 3 of the head note as follows: “Section 11 (4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1 October 1979) have clearly provided that the standard of proof in all civil action was proof by preponderance of probabilities-no exceptions were made.” Thus, a plaintiff and in this instance a petitioner, in a civil case has the legal and evidential burden to produce admissible evidence to prove his/her claim and assertions on the preponderance of probabilities. See Sections 11(4); 12(1) and 14 of the Evidence Act, 1975 (NRCD 323.) And in Ackah vrs Pergah Transport Ltd [2010] SCGLR 729, Holding (1) the Supreme Court per curiam, held that; “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.” Thus, for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by Section 12(2) and Section 14 of the Evidence Act 1975 (NRCD 323). See ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774; ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728 and ZABRAMA V. SEGBEDZI. [1991] 2 GLR 221. Therefore, the burden is on the petitioner to prove on the preponderance of probability that; she is a wife but the marriage has broken down beyond reconciliation and such Page 6 of 18 entitled to her reliefs See; HENRY DOE SAMLAFO v. GREDA & ANOR. [2010] 26 GMJ 94, CA and MAC DAN v. GABRIEL GBORBLESHIE [2015] 85 GMJ 90 at 113 Here, the evidence to be adduced in support of this positive assertion must be credible evidence as was explained by Georgina Woode CJ in CONTINENTAL PLASTICS ENGINEERING CO. LTD. VS. IMC INDUSTRIES-TECHNIK GMBH (2009) SCGLR 298 AT 307. This credible evidence as held by the Supreme Court is any corroborative evidence that exist and which was likely to be believed by the Court as true ought to be provided. See FOSUA & ADU-POKU VRS ADU-POKU MENSAH [2009] SCGLR 310. Before a court can grant a decree of divorce the parties should satisfy the court with the grounds that the marriage has broken down beyond reconciliation as provided under the Section 2(1) of the Matrimonial Causes Act 1971, Act 367. And for the purpose of showing that the marriage has broken down beyond reconciliation the onus is on the petitioner and on the respondent if there is cross petition to satisfy the court the conditions as provided under Section 2(1) Act 367 that; ((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 Page 7 of 18 (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 particularised her grounds for dissolution of her marriage on subsection (b) of Section 2 that the Respondent has behaved in such a way towards her amounting to unreasonable behaviour and the Petitioner cannot reasonably be expected to live with the Respondent. For the purposes of proving Respondent’s unreasonable behaviour, the Petitioner testified that she is asthmatic and sometimes experiences severe headache, cough, allergic rash and difficulty in breathing. When it happens like that she finds it very cumbersome to sleep and has to nebulize and sometimes she sedates herself before she can sleep. He said the Respondent took advantage of her unconsciousness and have sexual intercourse with her without her consent for a long time. She further stated that all attempts to make the Respondent stop such behaviour proved futile and he goes ahead to have sex with her and when she confronted him the Respondent stated that she is his wife and he can do to her whatever pleases him. She continued that the Page 8 of 18 unreasonable behaviour of the Respondent has caused her much anxiety, distress and has affected her productivity in her profession as a medical doctor. She further stated that the Respondent does not perform his duties as a man by not providing for the children financially. According to her, attempts have been made by members of both families to bring a finality to their misunderstanding by going to the extent of consulting men and women of God but all attempts have prove unsuccessful. Can the behaviour of the respondent be said to be unreasonable as provided for under the Act? In the case of KNUDSEN V KNUDSEN (1976) 1 GLR 204 Amissah J. A (as he was then) in a discussion on what amounts to unreasonable behaviour held as follows: “Behavior of a party which would lead to this conclusion would range over a wide variety of acts. It may consist of one act if of sufficient gravity or of a persistent course of conduct or of a series of acts differing kinds of none of which by itself may justify a conclusion that the person seeking the divorce cannot be reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so.” The Petitioner had earlier given evidence to the effect that the Respondent has been engaging in debauch activities of adultery. She stated that the Respondent have sexual intercourse with their maidservants and her hairdresser. It is noted that the adulterous acts as stated by the Petitioner were all of not recent happenings. From the evidence, those adulterous acts if they are correct at all may have occurred more than ten years Page 9 of 18 before this Petition was filed. This is taken from paragraph 14 of the petition that she had delivered her third born and from paragraph 5, the third born as at the time of presentation of this petition was eight years. Under Section 3 of the Act 367 any adultery that had exceeded six months before the presentation of the petitioner should be disregarded or that the Petitioner cannot rely on that adultery for the as grounds for dissolution of marriage. It provides as follows: “Section 3—Adultery of Respondent. Where with a view to reconciliation the parties to the marriage have lived with each other as man and wife for a period or periods after it became known to the petitioner that the respondent had since the celebration of the marriage, committed adultery, then— (a) if the length of that period or of those periods together was six months or less, their living with each other as man and wife during that period or those periods shall be disregarded in determining whether for the purposes of section 2 (1) (a) the petitioner finds it intolerable to live with the respondent; but (b) if the length of that period or those periods together exceeded six months, the petitioner shall not be entitled to rely on that adultery for the purposes of section 2 (1) (a).” However, the cumulative effects of all the alleged unreasonable behaviour coupled with the adulterous acts if correct can be enough to make the Petitioner go through the distress, anxiety and emotional pain she stated at paragraph 35 of her Petition. On the contrary, the Respondent was of the view that they were a happy family until his business slowed down and he went into financial difficulties. Page 10 of 18 In any case, the parties were separated prior to the presentation of this petition and both parties agree that attempts were made over a period of time to reconcile them without success. This point comes under Section 2(1) (f) Act 367 supra that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Flowing from the above it can safely be inferred that the parties could not reconcile their differences after diligent effort and as such, the marriage between them has broken down beyond reconciliation. I then move to the ancillary reliefs prayed by the Petitioner as the Respondent did not file any cross-petition. The Petitioner prayed for custody of all the issues of the marriage with reasonable access to the Respondent. It is noted that the Petitioner is a medical doctor and by that she is able to take care of the children. However, the Respondent is of the view that she is very busy with her work whilst he is not so busy and can take care of the younger children. He testified that he loves the children and he took care of the children whilst the Petitioner was in medical school and he trained them. He tendered in evidence pictures of how he cared for the children and how the children sleep on him before they are put to sleep. He continued that the older children can take care of themselves even if the Petitioner is not around but the younger ones need proper care and attention and he as the father can provide for that care. I have noted throughout the trial that the Petitioner is a very busy woman and she sometimes travel even outside the jurisdiction due to her work. I have also noted the ages of the younger ones and I am of the candid view that much as siblings should not be separated, it will be in the best interest of the younger two children to be in the care Page 11 of 18 of the Respondent than to be left with either care givers or other relatives of the Petitioner. Moreover, the Petitioner did not dispute the evidence of the Respondent that he has been a good father to the children and that he took care of them. The court will therefore grant custody to both parties for the care of the children. The two younger ones can be with the Respondent with reasonable access to the Petitioner whilst the two older ones can also be with the Petitioner with reasonable access to the Respondent. The next prayer is for an order to the Respondent to provide all the necessaries in life to the issues. Under Section 22(3) of Act 367 supra an order can be made for the maintenance of the children out of the property or income of either or both of the parties to the marriage. Therefore, it is not for the husbands or fathers alone who should provide the basic necessaries of life for the children. The court is to consider under Section 16(2) (a) of the Act the earning capacity of the husband, any resources of the husband, and any other circumstances relating to the financial position of the parties. It is noted that the Respondent is not gainfully employed now as against the Petitioner who is a medical doctor and so the maintenance order that was made by the court is rescinded. She led evidence to the fact that they have four children together and she testified that the Respondent expressed to her that the maintenance and caring of the four children should be shared so that she will take care of two whilst the Respondent takes care of the other two. They agreed and the Respondent provided for the older two for sometime but later shirked his responsibility which made the Petitioner to shoulder same in addition to the two children she was taking care of. Page 12 of 18 From the evidence, the Petitioner’s earning capacity is higher than the Respondent as the Respondent is unemployed now. Therefore, it will be unfair to order him to maintain the children having considered his financial position and that of the Petitioner. However, the Petitioner can always return to court for the order to be varied as and when the position of the Respondent changes. It is noted that none of the parties prayed for the distribution of any matrimonial property save that the Respondent in his evidence in chief listed some brand new electrical appliances that the Petitioner took for safe keeping for the Respondent which she has refused to return upon demand when the Respondent moved to his place. Also, there was a mention of the house at Mpenten, Sekondi Takoradi but the Petitioner did not pray for her part and neither did the Respondent who however stated that the house was built as a matrimonial house and for the love and good memory they shared he wants his children to have that property. Then the Respondent brought up a house that the Petitioner is constructing at Kasoa where he supervised and stated that it was the idea of the Petitioner to put up that building for rent to generate more revenue for the family. Even though the Petitioner denied, the Respondent brought a witness, the electrician who worked on the house for the parties. If that property was acquired during the subsistence of the marriage then it can be deemed as marital property together with the one at Sekondi. In MENSAH V MENSAH [2012] SCGLR 391, the Supreme Court interpreted the provision in Article 22(3)(b) of the 1992 Constitution liberally and purposively to mean that 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 the marriage was presumed to be marital property. Page 13 of 18 Article 22(3) is provided as; (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. It is noted that the Petitioner may have constructed the building with her money but with the assistance of the Respondent who may have supervised as he alleged. Also, with regard to the Respondent taking care of the children and the house whilst the Petitioner pursued her degrees, the court is admonished not to discriminate against such a person. In the Mensah case supra, the court opined that a spouse who performed various house chores enabling the other partner to have a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved as the acquisition of such properties were facilitated by the massive assistance that the other spouse derived from the other. The court then concluded that such spouse should be entitled to an equal share in the marital properties on offer for distribution upon the decree of divorce. Furthermore in GLORIA ODARTEY LAMPTEY V NII ODARTEY LAMPTEY BDMC 454/2013, the petitioner was granted properties the court concluded to be jointly acquired marital properties during the subsistence of the marriage when she was able to lead evidence as to her contribution in the performance of her wifely duties to the acquisition of same by the respondent during the marriage. This is distinguished in the recent case of PETER ADJEI V MARGARET ADJEI NO. J4/06/21 where the presumption of joint acquisition of marital property collapsed as an Page 14 of 18 exception because the petitioner single-handedly took a loan from the bank to put up the four units of flats which one was used as matrimonial home and that the loan had not been fully liquidated. Here, the court was of the view that where an individual takes an individual loan to develop his self-acquired plot during the subsistence of marriage, the property so acquired shall not be considered a family property jointly acquired until the loan has been fully paid whilst the marriage subsists where it could be said that such loan was fully liquidated through the influence by the role a respondent played as a good wife in all associated house chores. Here, the court decisions affirm that non-pecuniary contribution in the form of household chores such as emotional support, unpaid domestic services such as cooking, washing and caring for children of the marriage are admissible as proof of contribution. Therefore, the evidence of the Respondent that, he catered, and cared for the children whilst, the Petitioner worked or pursued her degrees cannot be disregarded. Issues relating to marital properties such as which properties to be shared, how those properties would be shared and on what basis the sharing would be done can be traced way back to the case of QUARTEY V MARTEY [1959] GLR 377 where the High Court supported the customary law position that the wife and children had a domestic responsibility of assisting the husband or father with his business and as such the wife could not claim any interest in any property she assisted her husband to acquire. The right of the wife and the children is a right to maintenance and support from the husband and father and this maintenance was subject to good behaviour. The customary law position was gladly eroded by changes in the traditional roles of men and women and the economic empowerment of women and thus was later held in YEBOAH V YEBOAH [1974] 2 GLR 114 that there was no positive customary law Page 15 of 18 preventing the creation of joint interest by persons not related by blood. The law regarding joint property then shifted to the position that substantial contribution by a spouse to the acquisition of property during the subsistence of the marriage would entitle that spouse to the acquisition of property during the subsistence of the marriage would entitle that spouse to an interest in the property. The substantial contribution position gained much support and in cases like ABEBRESE V KAAH AND OTHERS [1972] 2GLR 46 the court held that although the wife in the case could not state in terms of cash how much her contribution towards the building was it was clearly substantial and was further pointed out that the ordinary incidents of commerce had no application in the ordinary relations between husband and wife and the wife’s evidence as to the size of her contribution and her intention in so contributing would be accepted. This position was further reiterated in ANANG V TAGOE [1989-90] 2 GLR 8 that where a wife made contributions towards the requirements of a matrimonial home in the belief that the contribution was to assist in the joint acquisition of the property, the court of equity would take steps to ensure that belief was materialised. The court then modified the above position in MENSAH V MENSAH supra and in BOAFO V BOAFO [2005-2006] SCGLR 705 on equitable sharing of joint property would entail applying the equitable principle unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership. The court applied Section 20(1) of the Matrimonial Causes Act supra that “the court may order either party to the marriage 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”. Page 16 of 18 However, since none of the parties petitioned for any of the properties, the court will be silent on same. This is also because, no document was tendered in evidence as proof of any property and none of the parties was desirous in their evidence for any landed property to be shared either through their evidence in chief or through their petition and answer to petition. The only prayer that was made was by the Respondent in his evidence in chief requesting for the return of the electrical appliances the Petitioner took for safe keeping where she had refused to return them. Thus, the Petitioner should return the remaining electrical appliances she took for safe keeping to the Respondent. DISPOSITION/HOLDING I am satisfied from the evidence led by the Petitioner and the Respondent with his witness that the marriage between the parties celebrated at Jesus Christ of Later-Day Saint Church, Takoradi on August 12, 2007 with marriage Certificate No. LBS/002/2007 has broken down beyond reconciliation. The said marriage is hereby dissolved. Both parties are granted joint custody of the four children where both have reasonable access to the children. The order for maintenance granted to the Petitioner at the beginning of the case is rescinded. The Petitioner to return the following brand new electrical items she took for safe keeping to the Respondent: • Two cabinet air conditions • One 3 door fridge Page 17 of 18 • One home theatre, • One deep freezer, • One 55inch smart T. V. No order as to cost. Judgment for the Petitioner in the terms set above and a decree of dissolution of marriage should be drawn in favour of the Petitioner. H/H DORINDA SMITH ARTHUR (MRS.) CIRCUIT COURT JUDGE COUNSELS: EUGENE LARBI APPIAH ESQ. FOR PETITIONER – PRESENT ROLAND A. K. HAMILTON ESQ. FOR RESPONDENT - PRESENT Page 18 of 18