Dzmaede Vrs Zaah [2022] GHADC 113 (22 August 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW TAFO-AKIM ON MONDAY 22-08-2022 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A4/04/22 DINA DZMAEDE PAYASE AKYEM-MAASE PETITIONER VRS EBENEZER ZAAH PAYASE AKYEM-MAASE RESPONDENT PARTIES PRESENT JUDGMENT The Petitioner is before this Court seeking a dissolution of the ordinance marriage contracted between her and the Respondent on 23rd November 2019 at the Church of Pentecost, Kukurantumi. The parties have seven (7) issues namely, Richard Zaah, 23 years, Gideon Zaah, 19 years, Deborah Zaah, 16 years, Ruth Zaah Ahogba, 13 years, Samuel Zaah, 11 years, Lordina Zaah, 8 years and Sarah Addo, 5 years. Prior to the celebration of the ordinance marriage, the parties had been married customarily for 20 years. It is the case of the Petitioner that Respondent had humiliated her by informing his mother and his girlfriend that “her vagina is full of water and that he does not enjoy sex with her any longer”. That this has caused her being ridiculed by the said girlfriend who openly uttered the aforementioned statement to Respondent during a fight which ensued between Respondent and the girlfriend. According to Petitioner, she lodged a complaint with their Pastors who summoned the Respondent but upon inquiry Respondent denied making the statement however he brought a delegation to come and plead on his behalf. Petitioner says that she turned down the plea due to the fact that Respondent’s statement has made her a laughing stock in the community. That Respondent has being threatening her life and on one occasion she noticed that Respondent had hidden a sharpened cutlass under their bed and she asked their daughter to remove it. Petitioner claims that Respondent has subjected her to emotional torture, pain, distress and further defamed her character by his actions. That she has relocated to Kukurantumi however Respondent keeps spying on her. Petitioner avers that Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him because he has caused her much anxiety, distress and embarrassment and thus prays as follows: a) Five thousand Ghana Cedis (GHC 5,000.00) as compensation for breach of marriage and the pain, emotional torture and suffering. b) Equal share of a building plot lying and situated at Kukurantumi. c) Order of the Court compelling Respondent to pay maintainance of Five Hundred Ghana Cedis (GHC 500.00) and also to pay for school fees, medical bills. The Respondent in his Answer to the Petition denied that the marriage had broken down beyond reconciliation. He denied ever making the statement which had been alluded to him by Petitioner and stated that the issue arose about fifteen years ago in Akyem Maase and has since being settled amicably by some elders of the Church of Pentecost, Maase. Respondent further claimed that he neither had any concubine whom he uttered the statement to nor did he inform his mother about Petitioner’s “watery vagina”. That Petitioner has not been mocked or ridiculed in town as he never uttered the statement being alluded to him. According to Respondent he has made several attempts to reconcile with Petitioner and went as far as seeking the help of one elder by name, Addo to plead on his behalf for Petitioner to return to the matrimonial home all to no avail. Respondent claims as a means of reconciling with the Petitioner, he took foodstuff to her when she left the matrimonial home to Kukurantumi but Petitioner rejected it. That he has neither threatened the life of Petitioner nor has subjected Petitioner to emotional torture, pain or distress; he still loves Petitioner and is not ready to divorce her having being married for 25years. He thus averred that Petitioner was not entitled to the dissolution of the marriage or any of the reliefs she was seeking in this Court. The issue to be determined in this trial is whether or not the Petitioner is entitled to the reliefs she is seeking in this court. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Under Section 2(1) of the Matrimonial Causes Act, 1971, (hereinafter called Act 367) the Petitioner would have to satisfy the Court that the marriage has broken down beyond reconciliation. Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides that, “for the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue” In Re AshalleyBotwe Lands; Adjetey Agbosu and others vrs Kotey and Others [2003- 2004] SC GLR 420. It was held inter alia at page 425 that; “(5) …. the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and/or denied”. It was further stated as per Brobbery JSC at page 425 that; “…. if the court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the defendant must realise that the determination cannot be made on nothing…. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court……” Section 12 of NRCD 323 further provides that proof must be by a preponderance of probability. “Preponderance of probabilities” means that degree of certainty of belief in the 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.” This position was affirmed by the Supreme Court in the case of Adwubeng v Domfeh [1997-98]1 GLR 282 where it was stated that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities. The Petitioner in this case would have to prove that the Respondent’s behavior is such that a reasonable person in the circumstances and environment of the parties could not be expected to continue to endure. She would also have to convince the Court that she and the respondent have, after diligent effort, been unable to reconcile their differences. The evidence of the Petitioner is that Respondent has humiliated and made her a public ridicule in that Respondent told the girlfriend that Petitioner has watery vagina and due to that he does not enjoy sex with Petitioner. That Respondent has caused her much anxiety and emotional torture and once threatened to harm her during a disagreement that ensued between the parties. That the Respondent has made her life very miserable and thus she wanted a dissolution of the marriage. Respondent denied the allegations and still held on to the fact that he had no intention of divorcing the Petitioner since they had seven children together all through his testimony both in his witness statement and during cross-examination. To buttress his point, Respondent alluded that there have been several attempts on his part to cause the Petitioner to change her mind but his calls have fallen on deaf ears. Section 2 of Act 367 provides that, “for the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts: a) That the respondent has committed adultery and that by reason of the adultery the Petitioner finds it intolerable to live with the Respondent; b) That the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; c) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition; d) That the parties to the marriage have not lived as husband 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; e) That the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; f) That the parties to the marriage have after diligent effort, been unable to reconcile their differences”. The evidence before this Court has established that the harmonious relationship desired of husband and wife is totally missing in the case of the Petitioner and Respondent. Even though the Respondent has not consented to the grant of a decree of divorce, this Court finds as a fact that the parties cannot live in harmony; in fact, the parties before the commencement of the suit have being living separately without no hopes of cohabitation in sight and thus a refusal to grant a decree of divorce will not augur well for the parties. More so, the evidence before this Court establishes that all efforts to reconcile the parties have proved futile. I hereby declare the marriage as having broken down beyond reconciliation. I accordingly decree the dissolution of the ordinance marriage contracted between the parties on 23/11/19. Having come to the conclusion that the marriage between the parties has broken down beyond reconciliation, the Court will now consider the distribution of the property acquired during the marriage. I refer to Article 22 of the1992 Constitution of Ghana which provides that: 1. A spouse shall not be deprived of a reasonable provision out of the Estate of a spouse whether or not the spouse died having made a will. 2. Parliament shall as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. 3. With a view to achieving the full realization of the rights conferred to in clause (2) of this articles, a. Spouses shall have equal access to property jointly acquired during the marriage. b. Assets which are jointly acquired during the marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Akin to Article 22 (3) is Section 20 (1) of the Matrimonial Causes Act 1971 (Act 367) which empowers a court in an action for dissolution of marriage, to settle property rights of the parties on a “just and equitable” basis. The section provides as follows: 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. In MENSAH V MENSAH [1998-99] SCGLR 350, the Supreme Court speaking through Bamford Addo JSC (as she then was) at page 355 held: “the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce; because the ordinary incidence of commerce has no application in marital relations between husband and wife who jointly acquired property during marriage.” In the case at hand the Petitioner needs to prove that the property that is the one plot of land located at Kukurantumi was acquired by both parties or even Respondent solely during the subsistence of the marriage to entitle her to a half share of same. This burden placed on the Petitioner was however lifted when under cross-examination the Respondent admitted that the building plot was jointly acquired during the pendency of the marriage. Q: The land we jointly acquired was acquired during the subsistence of the marriage, not so? A: Yes, we bought it after we married. Q: What agreement did we enter into before buying the land? A: We agreed to buy the land because we had lot of children so we could put a place for us to relocate to. The Respondent having admitted that the one plot of land purchased by the parties was acquired during the pendency of the marriage the burden on the Petitioner to lead evidence to prove same was lifted and in consequence of that I order an equal distribution of the building plot located at Kukurantumi between the parties herein. PAYMENT OF COMPENSATION The Petitioner is asking for the Respondent to be made to pay a compensatory package in alimony of GHC 5,000 for breach of marriage, the pain, emotional torture and suffering that Respondent has caused her. The Respondent denied that she is entitled to this sum. The Petitioner thus needed to lead evidence to establish why she was entitled to this amount. Section 19 of Act 367 states that, “the Court may, whenever it thinks just and equitable award maintenance pending suit or financial provision to either party to the marriage, but no order pending suit or financial provision shall be made until the court has considered the standard of living of the parties and their circumstances”. Factors to be considered in awarding financial provision include the following: the income earning capacity, property and other financial resources which each of the parties has or is likely to have in the forseeable future; the financial needs, obligations, and responsibilities each of the parties has or is likely to have in the forseeable future; and the standard of living enjoyed by the family before the breakdown of the marriage. The Court must also take into consideration the ability of the spouse who will be required to make the payment. In assessing the financial provision, I have taken into consideration the vocations of Petitioner and Respondent being a trader and a farmer/carpenter respectively. The Petitioner filed her affidavit of means and averred that as a trader she earns GHC 400.00 as profit every month. Respondent also averred per his affidavit of means that he earns GHC 4,600.00 from farming each season. Respondent did not state how much he earns as a carpenter though he averred that farming is his main occupation. From the parties’ affidavit of means filed, it is evidently clear that the Respondent is in a better financial position than the Petitioner. I have also considered the fact that the Respondent conceded under cross-examination that he was taking care of only two of the children who were in his custody since the parties separated meaning that the Petitioner had assisted him in taking care of the other two children that Petitioner took along with her when she left the matrimonial home. I have also considered the fact that the parties have being married for 25 years with seven children. The chances of Petitioner meeting another man and remarrying is very slim. Petitioner’s prospects of remarriage has greatly dwindled after all these years. I therefore find the GHC 5,000 the Petitioner is claiming for to be fair and equitable in the circumstances. I hereby order Respondent to pay a lump sum of GHC 5,000.00 as compensation to the Petitioner. CUSTODY OF THE CHILD Section 22 of Act 367 empowers the Court to make any orders consequential to the child’s welfare which relates to custody, right of access, education and maintenance. The Children’s Act, 1998 (Act 560) provides per Section 2 that the best interest of the child shall be the primary consideration by any Court, person, institution or any other body in a matter concerned with the child. The case of Braun v Mallet [1975] GLR 81 is instructive in this regard. The Court in that case stated as follows: “The welfare and happiness of an infant is of paramount consideration. In considering matters affecting the welfare of an infant, the courts must look at the facts from every angle and give due weight to every relevant material.” In this case, Petitioner is seeking for the custody of the last child, Sarah Addo-5 years. She has informed the Court that custody of the other minor children except Lordina Zaah, 8years who currently lives with Respondent’s sister, be granted to Respondent. Respondent has agreed to have custody of the said children. There will be no need to disturb the parties’ agreement. The Court therefore awards the custody of Sarah Addo, 5 years to Petitioner with reasonable access granted to the Respondent. I further order the Respondent to maintain the child, Sarah Addo, at GHC 300.00 every month subject to periodic review. The Custody of the other 3 minor children, Deborah Zaah-16 years, Ruth Zaah Ahogba- 13 years, and Samuel Zaah Dodzi-11 years, is granted to Respondent with reasonable access given to Petitioner. The Respondent shall pay the school fees and medical bills of all the children including that of Sarah Addo whose custody has been granted to Petitioner. DECISION I find from the evidence led before this Court that the marriage between the parties has broken down beyond reconciliation. I therefore decree that the marriage be dissolved. The marriage between the parties is hereby dissolved. I proceed to make the following consequential orders: 1. The parties shall share the building plot located at Kukurantumi equally. 2. The Respondent is to pay to the Petitioner GHC5,000 as financial settlement. 3. Custody of Sarah Addo, 5 years is awarded to Petitioner with reasonable access granted to the Respondent. Respondent is to pay monthly maintenance of GHC300 to Petitioner which must be paid upfront for each ensuing month subject to periodic review. 4. The Custody of the other 3 minor children, Deborah Zaah-16 years, Ruth Zaah Ahogba- 13 years, and Samuel Zaah Dodzi-11 years, is granted to Respondent with reasonable access given to Petitioner. 5. The Respondent shall pay the school fees and medical bills of all the children including that of Sarah Addo whose custody has been granted to Petitioner. SGD H/W JOSEPHINE SARFO (MRS.) 22nd AUGUST, 2022 10