Adda Vrs Adda [2022] GHACC 130 (26 October 2022)

IN THE CIRCUIT COURT SITTING HELD AT AGONA SWEDRU ON WEDNESDAY THE 26TH DAY OF OCTOBER 2022, BEFORE HIS HON. JONATHAN D. NUNOO CIRCUIT JUDGE. SUIT NO: A4/14/2021 MADAM GEORGINA ADDA … … PETITIONER VRS. DAVID BASEPE NYERERE ADDA . . . RESPONDENT Parties Present. JUDGMENT The Petitioner has filed this petition seeking the following reliefs:- a. An Order of the Court to dissolve the customary marriage between the parties celebrated in 1980 in Navorongo. b. An Order by this Honourable Court to grant fair and equitable share of the following properties acquired by the parties during the subsistence of the marriage. i. A storey building at Ateitu – Winneba, H/No. SE 176, A/1 which the parties are currently living in. ii. Uncompleted building at Novorongo. iii. Hostel facility that had been completed and is now being used in Novorongo. iv. Hostel facility that has been completed and is now being used at Winneba. v. House number CAB 082, stadium area, Novorongo. c. An Order by the Honourable Court to compel the Respondent to give the petitioner her fair and equitable share of the proceeds generated from the operation of their hostel in Novorongo since 2017 up to date of final judgement. d. An Order by the Honourable Court to compel the Respondent to give the Petitioner her fair and equitable share of the proceeds generated from the operation of their hostel facility in Winneba since 2019, up to date of final judgement e. An order by the Honourable Court to compel the Respondent to pay a reasonable alimony or push off to the petitioner herein. f. Any other relief(s) that the Honourable Court may deem fit. g. Cost. The Petitioner avers in her 36 paragraph petition as follows: The Petitioner avers that she is a professional teacher and the Respondent is an Engineer by profession that they have five issues but two are no more. The Petitioner states that several attempts have been made by their respective family members, priest, friends and well-wishers to settle the matter between them but all attempts have proved abortive. The Petitioner state that she was a teacher though not a professional before her marriage to the Respondent in 1980 and after the marriage the Respondent travelled to Russia in 1981 for further studies. The Petitioner states that she gave birth to their first child within a week the Respondent travelled and left the child in the care of the Petitioner. That the Petitioner states that when the Respondent left, he was there for six years and the Petitioner thought it wise to do further studies to upgrade herself so the Petitioner went to St. John Bosco Training College at Navrongo for four years that is 1983 – 1987 for which she was awarded with Teacher Certificate “A”. Petitioner states that when the Respondent came to Ghana in 1987 the Petitioner had completed her studies at the Teacher Training College. The Petitioner states that when the Respondent finally returned from his studies in Russia to Ghana he stayed in Accra and was occasionally coming to Navorongo to visit the Petitioner and in one of the Respondent usual visits the Petitioner picked a seed for their second child and finally delivered in Navorongo in 1990. That when the petitioner gave birth to their 2nd child, taking care of them at Navorongo alone was very difficult so the petitioner discussed with the respondent to send one of them with him to Accra so that the petitioner will be less busy in handling the remaining one which the respondent agreed and as result Ama Adda was brought to the Respondent in Accra. That the petitioner repeats the immediate paragraph and avers that having brought the child to the respondent, she came to Accra one day for a visit but when the petitioner came she realized that the respondent was taking very good care of the child and therefore requested to come and live with the respondent in Accra which the respondent initially did not want to agree but agreed later on. That the petitioner states that she came to live in Accra with the respondent for two (2) years that is 1992-1994 and later picked seed again when she came to Accra for the 3rd child. That the petitioner states that having joined the respondent in Accra, the respondent had an employment with Ghana Ports and Harbour Authority (GHAPOHA) in Takoradi and therefore moved to Takoradi and left the Petitioner with the three kids that she was taking care of them. That the Petitioner states that the Respondent was working with Gbewa Civil Engineering in Accra and having moved to GHAPOHA in Takoradi, the Petitioner was the one taking care of the children which gave peace and stability to the Respondent for him to go about his lawful duties as a Civil Engineer. That the Petitioner states that Respondent was given an official vehicle though he had a private vehicle which he was using but went and parked the personal vehicle at the work place to prevent the Petitioner from using same to school and the Petitioner sometimes had to walk to and fro to school. That the Petitioner states that the Respondent gave the car which was acquired during the marriage to his brother by name Cletus now deceased who also gave the car to his wife and when the brother got a car, he then gave same car to Respondent when in fact the Petitioner was still walking to and fro to school. She also states that since 2007, the Respondent and Petitioner have never lived as man and wife since the Respondent had denied the Petitioner of her conjugal rights which has made it impossible for the Petitioner to live with the Respondent as husband and wife. The Respondent has been enjoying himself sexually outside the matrimonial home. That Petitioner states that during the pendency of the marriage, they acquired a story building at Ateitu-Winneba which they currently live in. That petitioner states that, during the pendency of the marriage, they have put up an uncompleted story building which the parties intend to use as hostel in Navorongo. That the petitioner further states they have a completed building at Navorongo near Navorongo Secondary School which the parties are using as hostel. That the petitioner states that all those properties were acquired during the pendency, which the petitioner contributed substantially either in kind or cash. That since the inception of the marriage, the respondent does not have any respect for her and has treated her as a rag not befitting a status of a wife to the respondent. That the petitioner states that respondent has been abusing her the petitioner which has caused her much anxiety, stress and embarrassment, which has made it impossible for the petitioner to live with the respondent as a wife. That the petitioner states that communication is the foundation of every marriage, however, the respondent does not even communicate with the petitioner as a wife which has been persisting for over two decades, which the respondent is aware and has therefore made it uncomfortable for the petitioner to live with the respondent, since she is no more interested in the marriage between them. That the petitioner states that, before the respondent went on retirement in the year 2012, he was given housekeeping money to the petitioner but since 2012, the Respondent has abandoned his duty and left the Petitioner to her fate. The Petitioner states that since there is a breakdown in communication so far as the marriage is concerned, the Respondent has left the matrimonial home to go and live at Navorongo for past two years when the Petitioner was not aware. That the Petitioner states that having left the matrimonial home, the Petitioner is the one who maintains the house. That the Petitioner states that the Respondent before his retirement at Ghana Ports and Harbour Authority was a senior officer and as a senior officer was entitled to a maid servant and other benefits but willfully failed to engage a maid to help the Petitioner perform all household chores since the Respondent said the Petitioner was there and would perform all those functions at home. The Petitioner states their the Respondent whilst at Takoradi he was a senior officer had an official car and parked our private car acquired during the subsistence of the marriage at the work place and only took sympathizers to come in before the vehicle was released to the Petitioner. That the paragraph 33 is repeated and avers that though senior staff officers were entitled to fuel for a month the Respondent gave me five (5) gallons and converted the rest to money which he pocketed. That the Petitioner states that the Respondent as the head of their nuclear family has pocketed all the monies that have accrued from the operation of the Hostels both in Winneba and Navorongo since 2016 and 2017. That the Petitioner says that she was using Mercedes Benz E 200 which the Respondent sold in November 2020 and up to date has not accounted to me to the extent of giving me equitable share. The Respondent also filed 34 pages answer to the petition and cross petition and claimed that the marriage between the Petitioner and the Respondent be dissolved that all properties listed by the Petitioner i.e. the 2 story building with out- house and single-story hostel at Ateitu, Winneba as well as uncompleted building and a hostel near Navorongo Secondary School were all solely put up by the Respondent without any financial and or other contribution from the Petitioner even though she has been gainfully employed all along. That the Petitioner is not entitled to any reliefs sought. The Respondent avers that in his answer to paragraph 6 says that only two attempts had been made to settle that differences, the first by one Clement Puwinayire (Cousin of the Petitioner) somewhere in 2011 at Takoradi and the second by Head of family of the Petitioner in the presence of members of both family in 2019 at Navorongo where Petitioner was made to apologize to the Respondent for lack of respect with promise to put up a better behaviour but to no avail. Any other intervention were only to urge the Respondent to take the Petitioner to the alter so that she could take communion as a Roman Catholic but the Respondent could not feel obliged due to the lack of respect. That the Petitioner admits paragraph 7 of the petition. The Petitioner admits paragraph 8 of the petition but says that the Petitioner was left in the expert care of the then Head of family and ever lord of Navorongo Traditional Area, the late Dr. Augustine Balinia Adda and his Wife and that the couple had been the Respondent’s guardian even before he got married to the Petitioner. That the Respondent avers in paragraph 9 by saying that the Petitioner’s admission was sponsored by the Respondent’s guardian who paid all bills and provided for the upkeep throughout the period as a student in the college and also took care of their daughter. That Respondent admits paragraph 10 and 11 of the Petition. That the Respondent admits paragraph 12 of the Petition save that the first daughter joined Respondent in Accra not because of any difficulty to the Petitioner but because the daughter had attained school going age and hence the need to give her a better education in Accra. That the Respondent vehemently denied paragraph 13 of the petition and says that the Petitioner was relocated to Accra to join the Respondent not because their daughter was not being taken good care of but that the Respondent facilitated the transfer of the Petitioner to a school in Accra with the reason that the Petitioner needed to join the husband and the kids in Accra. That the Respondent admits paragraph 14 of the Petition. Respondent admits paragraph 15 of the petition and save that the Respondent was responsible for the upkeep of the Petitioner and the kids whilst the stayed in Accra. That the Respondent answers paragraph 16 by saying that he lived and worked in Takoradi for 19 years i.e. 1994 – 2013 before relocating to Winneba without the Petitioner who initially claimed that Winneba was a village. Respondent says further that it took the Petitioner about three years before she joined the Respondent in Winneba and that was even after the rent of the apartment she occupied had elapsed and the Respondent refused to renew same. That the Respondent answers paragraph 17 of the Petition by reiterating paragraph 10 above and says further that he was visiting the Petitioner and the children every weekend in Accra. The petitioner filed a reply and answer to the cross petition and stated that she joins issues with the respondent on his answer to the petition unless express admissions however made in the answer. The petitioner admits paragraphs 1, 3, 6, 9, 10 and 12 of the petition (Sic). The petitioner denies paragraphs 2, 4, 5, 7, 8, 11, 13, 14, 15, 16, 17. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29. 30, 31, 32, 33, and 34 of the answer and shall subject the respondent to strict proof of those mere allegations. The petitioner in reply to paragraph 2 of the Answer hereby states that several attempts have been made by one Perry Adangba who is a friend to the respondent but to no avail. The petitioner’s daughters Alma (deceased), Sonnia also tried but was unsuccessful. Rev Father Appiah Kubi Rev. Father Abissi, Rev. Prof . Anthony Broni and a panel made up of members of both the petitioner and the respondent’s family also tried to reconcile the parties but all attempts proved unsuccessful. Rev. Father Paul Kapochinna got wind of the issue and called to plead so that the matter be resolved but his attempt was unsuccessful. That the petitioner denies paragraphs 17, 20, 26, 27, and 28 and avers that the petitioner has been maintaining the house with her little resources by acquiring all necessary items that will be needed to maintain their matrimonial home since time immemorial. That the petitioner repeats the immediate paragraphs and avers that their kids were all at the elementary school, the respondent was the one paying their fees whiles the petitioner was attending to other family needs when they got to tertiary level, the parties contributed resources to take care of them till they completed tertiary education. The petitioner further states that when the properties listed in paragraph 37 (i), (ii), (iii), (iv) and (v) were being constructed, the parties were then at Takoradi and the respondent will come to stay in Navrongo and Winneba to supervise the project whilst the petitioner was also taking care of the children and the house. The petitioner states further that since her resources as a teacher were not much as compared to the respondent, she will cater for the home and educational needs of the children whilst the respondent will also come and commit part of his funds to the project to balance it equally. That the petitioner states that not only did she provide this but also performed all household chores like keeping the home washing and keeping the laundry generally clean, cooking and taking care of the respondent’s needs as well as those visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the respondent had a free hand to engage in economic activities which the respondent cannot deny. The petitioner avers that it will be unconscionable, unconstitutional and against principles of fairness for her to be denied her share of the properties that have been acquired by them during the subsistence of the marriage for the past 40 years that they have labored and toiled for. The petitioner states further that contributions does not only mean monetary contribution though she contributed both monetary terms and other contribution which cannot be valued. The petitioner again states that during the construction of the buildings described water was very scarce and the respondent will come for the petitioner to fetch water and put them in “Kuffour Gallons” and gave same to the respondent to send to site. At this state, the petitioner was pursuing Master’s Degree at University of Education, Winneba campus but was doing so to make project achievable. The petitioner further states that she purchased mattresses, tables and chairs ( with monies from few students) to furnish the hostel as well as slabs in the compound, erected dry lines and paid for workmanship from her own resources That the petitioner states that ever since was married by the respondent she has accorded the respondent and all family members both young and old the necessary courtesies and has never on any occasion disrespected any family member of the respondent and the assertion that the petitioner has disrespected the respondent and his family members is not true and shall subject him to strict proof. The petitioner states that she has been paying utilities and maintenance of the house where the parties reside. The petitioner has been feeding the dog that was even brought to the matrimonial home ever since the petitioner joined the respondent at Winneba, to indicate that the petitioner has been playing her role as a wife and cannot therefore be denied her share of the estate acquired during the subsistence of the marriage. The petitioner denies all the averments in the respondent’s cross petition Save as herein as expressly admitted, the petitioner denies every material allegation of fact contained in the respondent’s cross petition and traverse seriatim. Wherefore the petitioner states that the respondent is not entitled to relief (ii) and (iii) of his cross petition The evidence in chief of the Petitioner is essentially the same as the averments in her petition and reply to her cross petition.as produced above The petitioner did not call any witness to support her story. The respondent testified and called two witnesses who testified on his behalf. The gist of the case for the Respondent is that the Petitioner is disrespectful to him and his family and he acquired the properties the Petitioner has listed solely without any form of contribution from the Petitioner. He Respondent called two (2) witness to come and support his case. The two witnesses who testified in support of the Respondent’s case essentially portrayed that the Petitioner did not contribute in any shape or form in to the acquisition of the properties. The Respondent tendered exhibits 1to 9 series in evidence. The issues set down for determination at the end of the proceedings are as follows 1. Whether or not the marriage has broken down beyond reconciliation? 2. Whether or not the petitioner is entitled to an equitable share of the properties acquired during the subsistence of the marriage 3. Whether or not the Petitioner is entitled to equitable share of the proceeds from the hostels? 4. Whether the Petitioner is entitled to compensation 5. Whether or not the respondent is entitled to his reliefs. I will take all the issues together as they appear above The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and 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”. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in 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”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. In the case of Ababio V Akwan III (1994-95) GBR 774 the Supreme Court reiterated the point at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities”. Determination of the issues. Counsel for Respondent in his address said there is no need for him to spend time on the issue of divorce because in his view, the marriage has broken down beyond reconciliation. Counsel for Petitioner from his address did not also spend too much time on the issue of whether the marriage has broken down beyond reconciliation. On my part, I also need not to spend too much with that issue as well but to give a brief reason why in my opinion the marriage has broken down beyond reconciliation. Respondent said that the Petitioner is disrespectful. But his conduct in this Court suggests that he was even accusing the Petitioner of infidelity. Why do I say that, the Respondent by his counsel filed an application to compel the children of the marriage to make themselves available to undergo DNA test. That application has not been moved by counsel and I deem it abandoned. The Court asked counsel for Respondent to furnish the Court with authority which states that a Court can compel an adult to make themselves available to undergo DNA test, especially in a civil suit such as matrimonial cause. Counsel came back to tell the Court that he cannot find any authority within the jurisdiction and he is extending his research outside the jurisdiction so the application was adjourned sine die to enable the counsel for applicant to supply the authority but he failed and did not say anything about that application. I will at this stage dismissed the application, the mention of the application is to support the conclusion I hold that the marriage has broken down beyond reconciliation. Paragraph 5 of the affidavit in support of the application states “That some utterances and conducts of the Petitioner/Respondent prior to the filing of the petition and subsequent thereto makes me doubt that I am the natural father of the children of the household. To call for DNA test of children of household by a father connotes that the mother of these children may have had the children with another man which speaks of infidelity on the part of the mother and therefor allegation of adultery being made by the Respondent. Interestingly the Respondent did not give the court a clue regarding the utterances and conducts of Petitioner which created the doubt that he may not be the natural father of these children. I must hasten to add that no iota of allegation of this was made in the pleadings and no attempt was made by the Respondent to lead evidence in respect of this damning allegation he made against the Petitioner. Apart from this application alleging that the Petitioner may not have been faithful, there is ample evidence on record which shows that the parties have not been able to reconcile their differences after diligent efforts and I will touch on these pieces of evidence shortly. Section 1of the Matrimonial Causes Act 1971 (Act 367) provides that either party to a marriage may present petition for divorce to the court and that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation . Section 2 of the same Act provides that for the purposes of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: 2(1) (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 be reasonably be expected to live with the respondent (c) that the respondent have deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) that the parties to the marriage have not lived as man and wife for 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…; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, have been unable to reconcile their differences.. The evidence adduced shows that the parties have not lived as husband and wife and there is admission by the Respondent that they have not had sex for some time now. This was the evidence elicited from the Respondent under cross examination by Counsel for Petitioner. Q: Since 2007 you have never had any sexual intercourse with the petitioner not so? A: Not so not 2007 all that I recall that since 2011 my wife Georgina continue to deny me sex in 2011, she kept in telling me I was a useless man, there were better people outside there and that all I knew was to go and roam about in town and when I come back I want food to eat when there is food and when there is none I go and sleep and that I have free sex and that is what she keeps saying about me, by all these utterances she had deflated my ego as a man. Q: It is never correct that the Petitioner ever used that word on you as you want the Court to believe. A: It is true even two (2) years ago before our families in her family house at Navrongo, when she had taken me there to report that all was not well with us, I told her the family what I have just told the Court amongst other thing she was made to kneel down and apologies for all the insults and other things, the family members are there. Q: It is never correct that the petitioner knelt down and rendered an apology as you want the Court to believe. A: She did in presence of our family members at her family house. Q: Do I take it that for the past 11 years you have never had sex with her? A: She denied me sex and she never had sex with me. Q: It is also not correct that the petitioner denied you sex but it is because you have been having sex with other ladies that is why you do not have sex with petitioner. A: That is not true and she has no evidence that I have been sleeping with other woman and I have told the Court what she did, how she deflated my ego as a man due to the insults she rained on me that made me not to have sex with any women. I completely lost interest in sex for a long time, so cannot be true that I was sleeping with other women there is no evidence. Q: A: Q: A: As I speak to you have a second wife not so. Yes I do. Can you tell the Court when you started dating the second wife. 2019. Q: When did you get married to her. A: Last year January 2021. Q: What is the name of your second wife. A: Patience Achelesiba. Q: Ever since you met your second wife, you have not had sex with the petitioner, correct? A: Long before then. Q: Can you tell the Court the last time you gave housekeeping money to the petitioner. A: I cannot recall but it may be somewhere 2020 but there is a reason for that, the reason was that I was providing everything that one can think of to make meal, fish, vegetable, meat and what have you but she was still demanding from me to buy small items such as spices and I said times are heard so she should complement she is still in active service I am not and my children are still schooling. Q: I suggest to you that since 2012 you never gave any housekeeping money to the petitioner as you want the Court to believe. A: That is not true, in 2012 I was still in active service and my children one was in the University, one was in Senior High School and one was in Junior High and I was providing everything, food stuff and housekeeping money. The Respondent has stated in his evidence in chief that to the best of his knowledge they had lived together as a couple until 2011 when he was persistently insulted by the Petitioner as useless man and that he was not the only person that she could associate with and that all that he knew was to roam the city of Takoradi as if he was not GPHA worker, only come home to eat when hungry and had free sex whenever he wanted. According to the Respondent these utterances amongst other deflated and damaged him as a man and so naturally he lost complete interest in having sex with the petitioner Though the Petitioner had denied insulting the Respondent and ever disrespecting him they both said they do not have sex. There is also evidence that attempts have been made to settle the issues between the parties but has not yield fruits. The Respondent claims that only two attempts that were made to resolve their differences but the petitioner has alluded to several attempts that were made at resolving the issues which were all unsuccessful. The Respondent is living with another woman as his wife. Be that as it may the evidence on record shows that more than one attempt was made to resolve the issues which did not yield the desired results. In any case, I hold the view that if the parties were minded to resolve their differences they would not have found themselves in court seeking divorce. Applying the law to the evidence on this issue I hold as a fact the marriage has broken down beyond reconciliation. Whether or not the petitioner is entitled to an equitable share of the properties acquired during the subsistence of the marriage It is stated by Date-Bah JSC in Patience Arthur V Mosses Arthur civil Appeal No J4/19/2013 dated 26th July, 2013, affirming the principle enunciated in the case of Mensah V Mensah [2012] 46 GMJ2 that marital property to be understood as property acquired by the spouses during the marriage irrespective of whether the spouse has made contribution to its acquisition. Arthur V Arthur supra accordingly, states that in the light of the ratio decidendi in Mensah V Mensah supra 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. Article 22 (2) (b) of the 1992 constitution provides that: (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It has been held by Date –Bah JSC in Boafo v. Boafo [2005-2006] SCGLR that equality principle laid down in Mensah v Mensah [1998-99] SCGLR may be waived if in the circumstances of a particular case, the equities of the case would demand otherwise. See also Christiana Quartson V Pious Pope Quartson supra. See also the majority decision in Agyei v. Agyei J4 6 of 2021 (2021) GHASC 5 21 April 2021). There is no doubt that the parties have been married for about 41 years and the evidence adduced clearly shows that all the properties listed in the petition were acquired during the subsistence of the marriage. There is also no doubt that the Respondent earned more than the Petitioner as an engineer who worked with Ministry for Roads and Transport, GPHA and Gbeewa Civil Engineering. This was the evidence elicited from the Petitioner under cross examination by Counsel for Respondent in regarding the property and the benefit the Petitioner may obtained from the marriage. Q. You are a trained teacher correct? A. Yes. Q. What is your highest level of education? A. Master’s degree in home economics. Q. When did you obtained this master’s degree? A. I started in 2012 and completed in 2013-2014 but graduated in 2015. Q. When did you study for your bachelor’s degree? A. 2001 and I completed 2005. Q. Before then you had trained at St John Bosco College at Navrongo, Correct? A: Yes. Q. Was your bachelor’s degree self-financed or sponsored? A. It was both because I was working by then and I had assistance by the Respondent. Q. Similarly the Respondent also sponsored you master’s degree from 2013 – 2015, correct? A: That is not true. Q. A. How did you financed your Master’s degree? I was working by then and I went on study leave with pay. Q. You remember Doctor Adda Augustine, correct? A. I do. Q. How does the Doctor Adda Augustine related to the Respondent? A. That is his guardian. Q. And Dr Augustine Adda was once upon a time a Paramount Chief of Navrongo correct? A: Correct. Q. You remember between 1983 to 1987 when you were training for your Teacher’s Certificate, Doctor Augustine Adda the guardian of the Respondent solely financed this your training correct? A: They rarely assisted because we were on allowance. Q. Between 1983 -1987, you recall that the Respondent was also a student in Russia? A: Correct. Q. And was not in the position to have financed your education but for his guardian, correct? A. Correct. Q. You agree with me therefore that you situation in life today largely is by the provision of the Respondent and to some extent his family, correct? A. Not correct. Q. Apart from your teaching career, you have not engaged in any other trade or profession in your marriage, correct? A. Not correct I was doing sewing before I even got married I attended a vocational school and was doing pupil teaching as well before I got married so when I married I was doing a little bit of hair dressing, petty trading like selling clothes. Q. These so called enterprises you have just stated were not commercial in nature in other words they were not on large scale. A: Correct. Q. And the income accruing therefore could hardly take you home. A. It was a side job because I was teaching. Q. Your husband on the other hand is a professional engineer. A. Correct. Q. And your husband has worked with reputable institutions such as Ministry of Transport, Ghana Ports and Harbour Authority and Gbewa Civil Engineering, correct? A: Correct. Q. You therefore agree with me that in the course of your marriage between you and the Respondent the Respondent was financially sound than you? A: Correct. Q. A. Do you know one lady referred to as Vivian Amole? I do, I know her. Q. At a point in time she was your domestic help? A. I engage her. Q. Apart from Madam Vivian Amole you had other domestic helps like Aloriweh and Miss Azeo Judith as well as Miss Adams? A. That is correct I engaged them and took care of them but Miss Adams was not a house help she was my niece who came to better her grades and I sponsored her. Q. Those domestic helps were being paid by Ghana Ports and Harbour Authority (GPHA) as part of Respondent’s condition of service, will you confirm that? A. This is the first time am hearing this, if they were, I did not know about it so I cannot tell because I did not see anything to show that they were being paid if they were being paid the money did not come to me or them I do not think the money went to them else they would have told me. Q. But the fact is, you were not the one responsible for the payment of their stipend or allowance or salary which ever name you want to call it A. I was not the one responsible for that because Aloriweh had scabies and I solely paid for the treatment of that lady I cannot tell the year it was long ago. Q. Having admitted that at one point or the other you had domestic help, you would agree with me that the burden of keeping the house was not your sole responsibility. A. To some extent yes because I do most of the work honestly and the last person Adams left in 2006. Adams came for her remedial she was my relative, from 2006 I did not have any house help. Q. I am suggesting to you that, the last of the domestic workers left when the Respondent retired from Ghana Ports and Harbour Authority. A: Not correct. Q. I am further suggesting to you that these domestic helps were solely responsible for Laundry, cooking and keeping your place tidy since you were in full time employment. A: Partly they assisted. Q. In your petition, you have label some properties at Navrongo and Winneba and said you contributed to their acquisition, do you still stand by that assertion? A: Yes, I do. Q. During the construction of those properties you will agree with me that you and the Respondent were permanently resident in Takoradi. A: Correct. Q. Do you know one Doris Adda? A. I do. Q. She is the younger sister of the respondent, correct? A. Yes. Q. Doris lives and works at Navrongo, correct? A. Correct. Q. And it is also correct that Doris Adda was in charge of supervising the construction of the Navrongo properties whilst you were enjoying life with the Respondent in Takoradi. A. Not so because most of the time the Respondent travels to Navrongo to supervise the project so if in his absence he asks Doris to check that is fine but he is always there. Q. Respondent travels to Navrongo on weekends and not in week days when he was expected to be at work. A. Not correct because he could be away for a week. Q. You know one Mr. Adjei Laryea and Mr. Buku, correct? A. I know them. Q. These persons are ordinary resident at Winneba, correct? A. I do not know whether Solomon Adjei Laryea has moved to Winneba now I know he is in Takoradi but Vicent Buku lives in Winneba that I am aware of. Q. Solomon A. Laryea is a building contractor, correct? A. Correct. Q. And Vicent Buku is a carpenter? A. Yes. Q. You would remember that during the construction of the Winneba property, the Respondent engaged these two men Solomon and Vicent as supervisors of the property since the two (2) of you were living in Takoradi. A: Not correct because he was always in Winneba. Q. You know of Best Time Hostel? A. Yes I do. Q. How do you it? A. The hostel belongs to the Respondent and I because I contributed to buying of mattresses and buying of chairs into the hostel and when it was under construction, I went to the place look at it and did some supervision, I organized the students to come into the hostel when it was completed and I took the money from the students to buy the mattresses because the first time it was completed, the Respondent was able to get only (5) five students so the following year, I was able to get the hostel full. Q. Best time hostel is a registered enterprise registered in the name of the Respondent are you aware? A. No. I thought it was for the family. Q. I am further suggesting to you that it is not possible to have supervised the construction of Best Time Hostel from your base in Takoradi when the Hostel is in Winneba? A. I did not supervise it solely but I go there because that time I was doing my master’s in Winneba, so I could just pop in. Q. The properties at Winneba are covered by Registered filled documents are you aware of that I am talking about indentures? A. I know they are registered but he has not shown me the documents so I am assuming. Q. These documents does not bear your name as a joint lessee or at the very least you signing them as a witness to the Respondent. I am suggesting that to you? A. I am not aware but I thought I was part of it that was why I put in all my efforts. Q. These properties are connected to electricity and water, you are aware? A; Correct. Q. Bills in these properties are charged in the name of the Respondent, correct? A. Correct they are charged in the name of the Respondent but payment is not always made by the Respondent because for the house I pay the bills but the students are charged and the money is used to pay the water and electricity bills by the Respondents. For the electricity bills in the house, we were both paying intermittently when I joined him in 2015 in Winneba but from 2018 he left to Navrongo and I catered for the bills that is electricity and water. Q. And by the time you moved to Winneba, the Winneba properties has been built and furnished when you moved in? A. Not all because the kitchen cabinet and the shelves in the store Room, I have to run after the man in charge. Q. I am suggesting to you that since you did not contribute either in cash or in kind to the acquisition of the properties both in Winneba and Navrongo you are not entitled to any share of them? A. I am entitled to a share of the properties because there were different means of contributing. Under the Cross examination by counsel for Petitioner, the evidence Respondent gave confirmed in no uncertain terms that the property was acquired during the subsistence of the after trying hard to show that he single handedly acquired the properties listed in relief B of the petition. The evidence is as follows:- Q: A: You and the Petitioner got married in 1980 in Navrongo correct? Correct. Q: And before you got married the Petitioner was not a professional teacher, correct. A: Correct. Q: A: Q: A: Q: A: Q: A: And you travelled to Russia in 1980 for further studies correct? I travelled to Russia in 1981. So you have been married for the past 41 years correct? Correct. You and the Petitioner have children, correct? Yes, we have. And they are all adults as we speak. Correct. Q: When you went to Russia in 1981, when did you return to Ghana? A: 1987. Q: When you came back in 1987, the Petitioner has obtained her certificate A from St. John Bosco Training College at Narongo, correct? A: That is correct. Q: The Petitioner in 1992 to 1994 came to live with you in Accra from Navrongo. A: Correct. Q: And no sooner has she joined you when you had an appointment with GPHA at Takoradi, correct? A: She joined me in 1992 and I had appointment with GPHA in February, 1994. Q: As at the time you were leaving to Takoradi how many children were you having with Petitioner? A: Two young girls, I left in February 1994. Q: A: And you left those two young girls with the Petitioner. Correct. Q: The Petitioner subsequently move with the children go join you in Takoradi. A: Correct and when she joined me they were three children because the 3rd child came in October 1994 when I was already in Takoradi. Q: Can you tell the Court when the children and petitioner joined you in Takoradi if you know. A: If my memory serves me right it will be in 1995. Q: Can you tell the Court the number of years you and the family spent at Takoradi before you retired. A: Myself from 1994 to 2013 that I spent 19 years but they coming in after a year that I have been at Takoradi, the Petitioner and the children spent 18 years. Q: And within these period that you and petitioner were living the petitioner was cooking for you, washing and having sex with her correct? A: I was performing my responsibilities as a husband which includes having sex, I was providing for her to do the cooking for the whole family, she was not washing for me up till today I do my own laundry. Q: The two of you during the subsistence of the marriage were able to acquire a storey building at a place called Ataatu at Winneba. A: That is not the case I single handedly acquired the property. Q: A: Can you tell the Court when the said property was acquired. I acquired the land somewhere 2006 and I was paying ground rent on it until 2011 when I contracted someone to prepare the land for the construction. Q: When was this project completed. A: It was completed in 2013 and I moved into it in May 2013. Q: The two of you have an uncompleted building at Navrongo which is intended to be used as Hostel, correct? A: That is not the case, I single handedly started the project with my own resources. Q; As I speak to you now, the said building is completed and given out to students as Hostel, correct? A: That is not correct, the buildings are two, one is completed and given out and it was put up from scratch to completion and given out the other one is uncompleted. Q: There is a completed building that has been rented to students at Navrongo and one which is uncompleted is that correct? A The completed building is a hostel but as we speak there is no student in and for a long time, there is no student in when I completed it the first two years there were students, this is when the integrated development faculty of the University of Development was based in Navrongo so there were students in the first two (2) years, that faculty was moved to Wa and that faculty was the one which had the bulk of students at UDS Navorgo was then redesigned for Applied Science and so admissions became low because many students were not interested in Applied Science so the Hostel was shut down until now. … Q: I suggest to you that the Hostel facility at Winneba which you manage as well as all other properties listed under relief B are matrimonial properties which you cannot do anything to them without the consent of the petitioner. A: I took loans from my former employers, I made savings I took loans from Barclays Bank my bankers and I got a severance package when I went on my early retirement which package was quite good. In all these, the petition never invested a pesewa, she did not even know the location of the Winneba hostel until the year 2015 when she joined me at the residential building at Winneba. I had been at Winneba two years before she joined me in 2015 and at the time she joined me the hostel was at lintel level. Q: It is not correct, that you took loans and your pension benefits to acquire the properties listed in the relief ‘B’ of the petition. A: It is true and these are reliable facts and if one goes to my former bankers, Barclays bank the records are there, Takoradi branch of Barclays bank and then my former employers GPHA before I existed I took a loan from them, then again when I exited GPHA in 2013, I was 55 years old then and I went on early retirement so I was given a package, that is a package that is when you decide to leave your employment at age 55 your five years salary is multiplied by 2 and paid to you plus other additional benefits that I can provide if the opportunity and all these can be ascertained. Apart from the basic salary which is multiply by two there is also clothing allowance yearly because I was leaving early, I was paid lump sum which is two months’ basic salary times the five years. There was also a previous years bonus which is also two (2) months basic salary which was paid for the five years left. Education allowance which is two months basic salary which are paid for the five (5) years left. All these payments are tax free and these are all verifiable when I existed GPHA my cheques we taken to UBA bank Takoradi branch as at the time I was still owing Barclays the loan I took. So UBA paid off the loan at Barclays bank and the loan became that of UBA. I had also made investment in Enterprise Life Assurance and invested in Ndoom Devlopment Bank so these are the sources of my funding of my projects. Q: I suggest to you that it is never correct that these are the sources of the funding of the properties listed in the relief (B) of the petition. A: It is legitimate and correct I never had any other sources of funding I was an engineer and I earned these resources legitimately. Q: I further suggest to you that these averments are not borne by any records before this Court A: By records that may be so but all that I have said can be verified whether or not I took an early retirement at GPHA whether I took loans at Barclays bank and whether I took loans at UBA and whether it is UBA that took my retirement cheque from GPHA all these are verifiable. Q: It is also not correct that you took early retirement as you want the Court to believe. A: It is a fact that I took early retirement and even the petitioner is aware I was 55 years by 2013 and I retried on February 8th 2013. I was the first manager in Takoradi Port who took advantage of this early retirement package which is still sustaining. Q: You agree with me that a story building at Ateetu, Winneba number SE 176A/1, uncompleted building at Navrongo which you intend to use as hostel, a hostel facility completed at Navrongo, Hostel facility at Winneba and House No. CAD082 stadium area Navrongo were acquired during the pendency of the marriage correct. A: Correct, and we are still married anyway. The Petitioner is a professional teacher, the Respondent said that as a senior officer of GPHA, he is entitled to a house help and said he does his laundry by himself. But the Petitioner said that she did not know whether the house help was paid and if they were, they did not tell her they were paid but she engaged them and she took care of them. The Petitioner said one of the people mentioned as house helps is her relative who came to live with them to better her examination results and she took care of her. The Respondent’s evidence as I understood it suggest that the Petitioner had assistants to help her keep the home so she did not contribute even in kind towards the acquisition of the properties. None of the parties called any of these house helps to come and testify and they did not tell the court why they failed to call them to testify. It was the Respondent who made the allegation that the Petitioner benefited from the services of house helps because he was entitled to them as a senior officer of GPHA so at least he should have persuaded the court on these allegations In any case, the Respondent did not tell the Court how the children were taken care of and how the home was managed even though he said he provided for the household. The Petitioner said she used her salary to take care of the home and the Respondent used his earnings to acquire the properties and that though the properties were registered in the name of the Respondent, she knew the properties are for the family. The Respondent said the properties were acquired by him solely without any contribution whatsoever from the petitioner and that he acquired the properties for his children and to take care of him at his old age. He said he took loans and other benefits of his employment to acquire the properties but he did not tell the Court whether any of the loan facilities were yet to be redeemed so it is fair for this court to infer that all the loans has been paid so per the laws stated above the properties still remain a joint property. The Petitioner said she contributed in buying mattresses and chairs into the hostel and when it was under construction she went there to do some supervision. She also said organized the students to come into the hostel when it was completed and she took money from the students to buy mattresses because the first time it was completed, the Respondent was able to get only five (5) students so the following year, she was able to get the hostel full with students. When she was told that it was impossible to do any supervision because the Hostel is at Winneba and she is at Takoradi, she said she did not do the supervision entirely but she goes to the site from time to time to check progress of the work because she was by then doing her master’s programme at Winneba so she could pop in as and when.to see what was going on. If this assertion that she pops in to supervise the project is not even true, what about the buying of mattress and chairs and ensuring that the hostel is full, that was not challenged or contested? The Petitioner also said she fetched water for the Respondent to take to site to be used for the project and this was also not refuted in my view. I have said that the Respondent did not call any of the house help to come and tell the Court how they help the Petitioner to maintain the household and who paid them. The Respondent was the one who wanted to show that he made the Petitioner comfortable by providing these house helps for the Petitioner because of his status and they maintain the home solely and that the Petitioner did not do any of the wifely duties except perhaps making babies so the onus was on him to provide further proof of this allegation but he failed and his failure to call these house-helps to corroborate his evidence affected his case so far as the issue of sharing of the properties were concerned. In the case of Majolagbe V Larbi 1959 GLR 190 at 192 the court stated as follows; Proof in law is the establishment of facts by proper legal means, when a party makes an averment capable of proof in some positive way e.g. by producing document description of thing reference to other facts instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating the averments on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstance, from which the court can be satisfied that what he avers is true”. It is also stated in Christiana Quartson V Pious Pope Quartson Civil Appeal No JA/8/2012 dated 31st October, 2012 by Ansah JSC that the institution of marriage is not one to which the ordinary incidents of commerce would apply. This is a matrimonial cause and I am not sure that the Respondent is suggesting that the Petitioner did not spend any money on the house hold and he took care of everything from maintenance of the house, paying of school fees and the house help did all the house chores without the Petitioner doing anything at all and all she does is to go to work and come and keep all her earnings to herself. In any case the Respondent admitted that he stopped giving housekeeping money sometime in 2020 because after providing all that is needed to prepare meals, the Petitioner will ask for money for spices which means at least the Petitioner was cooking for the household until then and when he stopped giving housekeeping money the Petitioner was keeping the home running. The Petitioner admitted that the house helps assisted her which means she performed her role in addition to her work as a teacher which made it possible if not convenient for respondent to go about his duties without thinking of domestic affairs, I must say that that Dw1 and Dw2 did not add any value to the Respondent’s case and the least said about their evidence the better, The evidence they gave was to the effect of the role they played as employees of the Respondent who contracted them to do the work. Though their evidence that it was the Respondent who engaged them to work was corroborated by the petitioner that piece of evidence did not take anything away from the Petitioner’s case since she need not to establish that she made substantial financial contribution to the acquisition of the properties before she gets a share of the properties. It suffices for her to get a share if the properties were acquired during the subsistence of the marriage but in my view whether the properties are to be shared equally or equitably will depend on the contribution made towards the acquisition of the property by either spouse. The receipts and indentures in the name of the Respondent solely does not in any way disentitle the Petitioner from getting an equitable share of the property. According Black’s law Dictionary 8th Edition equitable distribution Family Law. The division of marital property by a court in divorce proceedings under statutory guidelines that provide for a fair but not necessarily equal, allocation of the property between the spouses. With equitable distribution when marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including a spouse‘s monetary contribution, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage and the length of the marriage. The court may take into account the relative earning capacity of the spouses. In the matter before me, though it appears the Respondent was unable to show that she made substantial financial contribution towards the acquisition of the properties she was able to demonstrate that she contributed both financially and in kind. She assisted in keeping the home and shared the responsibilities of maintaining the children of the household and taking care of them which in my view gave the respondent the peace of mind needed to acquire the properties. As I have said the Respondent did not lead any evidence to persuade the court that the Petitioner had all the help in needed to keep the home and used all her earnings on herself without helping in any way to take care of the children. The properties are therefore declared as properties acquired during the subsistence of the marriage and they were jointly acquired by the parties. This was what was said in respect of the Matrimonial home by the Petitioner. Q. And by the time you moved to Winneba, the Winneba properties has been built and furnished when you moved in? A. Not all because the kitchen cabinet and the shelves in the store Room, I have to run after the man in charge. What the above evidence suggests is that when the Petitioner came to Winneba, the matrimonial home has been put up and all she did was left was the kitchen cabinet and shelves in the store room and he run after the man in charge to have them done. In applying the law to the evidence adduced, I hold that the properties were acquired during the subsistence of the marriage and it will be equitable in my view to share the properties for the parties in the manner below. The Respondent is to take the matrimonial home at Winneba, the hostel at Winneba and the uncompleted hostel at Navorongo. The Petitioner is to take the house at Stadium Area at Navorongo and the hostel at Navorongo. Whether the Petitioner is entitled to equitable share of the proceeds from these hostel facilities. The Respondent says the properties are his bona fide properties acquired for his children and to take care of him when he is frail and that the proceeds from the hostel are to be ploughed back into the business and to maintain it but not to be shared This was the evidence elicited from Respondent under cross examination: Q: Which year was the project completed? A: Let’s say the project was completed in the year 2000 but I am not sure about the date unless I check but it operated for two (2) years and shut down. Q: A: Can you tell the number of rooms in that completed hostel? Sixteen (16). Q: Can you tell the Court how much you were making from the operation of the hostel? A: I think it was about GHC350.00 per students per annum at the time and it was for two years only. Q: Can you tell the number of students who were in the facility which you have alluded to, the period? A: 2 students per room in 16 rooms is 32 x 2 which sums up to 62 Q: So from your explanation you make an amount of GHC22,400.00 within the period you have described, correct? A: I do not have the benefit of a calculator and I cannot remember the amount, it was a facility but the figures given me is what I have mentioned the number of students and the year is what I have given so it can be calculated. Q: I am suggesting to you that you never gave a dime out of the GHC22,400.00 to the petitioner. A: It was a business and a business do not give out its working capital that money was invested into the uncompleted building I spoke about which still not completed and some used to maintain the hostel. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: You also have a hostel facility at Winneba, correct? Correct. Can you tell the Court when it was completed? It started in 2014 and completed fully in 2018. Can you tell the number of rooms on that facility? Thirteen (13). Can you also tell the Court the number of student at that facility. You mean moving it now as we speak the students are 10 because of the prolong strike. If not the strike, how many students are there in a room? Two (2) per room. How much do you charge per student? In 2018 academic year GHC700.00 per student in 2019, GHC1,000.00 per student in 2020, GHC1, 350.00 in 2021. It is was GHC2,000.00 per student and in 2022 this year it is between GHC2,300.00 and GHC 2,500.00 those who have been there from last year GHC2,300.00 and they are five (5) in number and those who came in this year they pay GHC2,500.00 and they came also five (5) in number. Q: All these monies you had from the operations from the hostel at Winneba, you never rendered account or gave the petitioner a pesewa. A: I am not accountable to her because she never put a pesewa in it, we do not share money from a business it is meant for re-engineering of the business and it for the maintenance and operational cost of the business and it is a business I am developing for my children, when I am no more they take over or when I am weak. From the evidence adduced it appears the Respondent was the only one benefitting from these ventures without recourse to the Petitioner. The Respondent has not told the court how much was ploughed back into the business and what was used to maintain same. I do not think it is equitable and just for the Respondent to deprive the Petitioner from getting part of the proceeds from the operations of the hostel facilities since the properties were acquired during the subsistence of the marriage This was the answer Respondent gave when it was suggested to him that he did not gave a dime from the proceeds accrued from the Navrongo hostel. “It was a business and a business do not give out its working capital that money was invested into the uncompleted building I spoke about which still not completed and some used to maintain the hostel”. This court having declared the properties as jointly acquired and having shared the properties between the parties is of the firm view that the Petitioner is entitled to an equitable share of the proceeds from the operation of these hostels. I am not oblivious to the fact that some of the moneys from these hostels will be used to run it but not all the moneys are used in the day to day administration of the hostel, if profits are made when recurrent expenditures such as salaries and others are settled and when profits are made after all these expenses have been deducted the owners in this case the parties must decide what to do with the rest of the money. The Respondent alone cannot decide what to do with the money when the Petitioner has interest in the hostel facilities. Even if the moneys are to be ploughed back the Petitioner is entitled to know and to approve of it. In any case if some of the proceeds are to be ploughed back into the business what will that money be used for all these must be decided by the parties. The Respondent said some of the proceed was invested into the uncompleted building h spoke about which still not completed and some used to maintain the hostel. That uncompleted hostel is now for him so the Petitioner must also be given the proceeds from the hostel settled on her. Is the Respondent telling the court that all the monies accrued from running the hostel was ploughed back into the business without him getting any money? The property in question is hostel and it must have been completed before students can pay to occupy. The Respondent is not saying that he used the proceeds to defray his investment. Even if that was the case since he has paid the loans that he claimed he obtained for the purposes of the projects on the authority of Adjei v Adjei supra the proceeds from the hostel still belongs to the two of them since the Property is jointly owned. In sharing proceeds accrued from the operations from these hostel, I declare that the Petitioner should be paid (2/3) two-thirds out of GHC22,400.00 which was accrued from the operations from the hostel at Navorongo declared to be the property of the Petitioner at the time it was shut down. Further, the Respondent should render accounts from when the Navorongo hostel resumed operations if it did and pay (2/3) two-thirds of out the total proceeds from when the hostel resumed operations to the Petitioner. Since that hostel at Navrongo and the house at Navorongo has been settled on the Petitioner, the Respondent is granted one month from today to convey these properties to her. Whether or not the Petitioner is entitled reasonable compensation from the Respondent. The Respondent pointed out that he sponsored the Petitioner education and that it was his guardians who paid for her training in Teacher Training College which the Petitioner admitted and said they rarely did because she was on allowance and but she admitted that the respondent partially sponsored her degree programme which means the Respondent has contributed to her development which has inure to her benefit in the marriage and continue to inure to her benefit post marriage. With this above admission and the fact that the Petitioner is working with the training she has received and reaping the benefits, which she continues to reap I will refuse her claim for compensation. The Respondent is ordered to rent a suitable accommodation for the Petitioner and pay two years rent for her. No order as to cost. Robert Twene for the Petitioner. B. B. Simpson for the Respondent. (SGD) H/H. JONATHAN D. NUNOO (CIRCUIT JUDGE)