Armah Vrs Apletey [2021] GHADC 4 (23 August 2021)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 23RD AUGUST,2021 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE THOMAS ARMAH PETITIONER SUIT NO. A4/8/2020 VRS EDINAM APLETEY RESPONDENT PETITIONER PRESENT RESPONDENT PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES This is a proceeding under the Matrimonial Causes Act, 1971 of Act 367. JUDGEMENT The parties have married for almost ten (10) years at Hwidieam, after the marriage they lived in Hwidieam. There are four (4) children in the marriage: Namely: (1) Belinda Armah Kangah … 9 years (2) Philip Armah Kangah … 7 years (3) Blessing Armah Kangah … 4 years (4) Doza Armah Kangah … 2 years On the 26h May, 2020 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayers were formulated in the particulars of her petition as follows: (1) An order for the dissolution of the marriage under the Ordinance Cap 127 between the parties. (2) An order for Custody of the three (3) children in the marriage namely: a. Belinda Armah Kangah b. Philip Armah Kangah c. Blessing Armah Kangah The Respondent filed an answer and prayed for the following orders and reliefs: (a) Respondent prays that the marriage between them should stand as it is. (b) Half share of proceeds of five (5) bedrooms house (boys quarters) and the building plot situate at Hwidiem Brotherhood which respondent assisted Petitioner to acquired and build and which Petitioner had sold. (c) Respondent seeks GHc20,000.00 as push off package for eleven (11) years of marriage (d) Respondent seeks for Custody of the children in the marriage. The court referred the matter to both parties to see their families for settlement but they told the court that all efforts to make amends prove futile. Dotse JSC in GLADYS MENSAH V. STEPHEN MENSAH [2012] 1 SCGLR 391 quoted Lord Denning in his book, “LANDMARKS IN THE LAW” Butterworths, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows: “….. There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society as well. THE PETITIONER CASE The parties got married under the Marriage Ordinance (Cap 127) in 2012 at Hwidiem. Thereafter they cohabited at Hwidiem. They have been married for almost eleven (11) years with four (4) children of the marriage. It was the case of the Petitioner that the Respondent has refused to join him permanently in Kumasi when his job took him to Kumasi. According to the Petitioner he made a container for the Respondent to continue her dressmaking business at Kumasi to enable her stationed at Kumasi but the Respondent was not enthused about it and after joining him in Kumasi then started to commute to and from Kumasi to Hwidiem. He maintained that the Respondent after sometime stopped coming to Kumasi and he also took the children to her at Hwidiem and he also started to commute to and from Kumasi but he later realized that the Respondent was having an affair with another man through the Respondent’s own phone where she and the other man exchanged some romantic words which is adultery for a married woman to indulge in such behavior. He contended that the Respondent have numerous boyfriends. He further contended that he detected from Respondent’s cell phone some voice messages and played it and it was revealed to him that the Respondent and his concubines always insulted him in their conversation and this made him to transfer the information onto the pen drive which he is tendering it to support his case as to why he wanted to cause the divorce. The Petitioner contended that whilst the marriage was subsisting the Respondent was having sexual intercourse with different men now and then that at one instance the Respondent even pleaded before the elders for the Petitioner to forgive her. Some of the concubines of the Respondent are Ayensu, Jones, Emma, Nii who works at Newmont and Ibrahim a driver and others. He told the court that Ibrahim had passed two nights in the Respondent’s house and he chanced on them. He contended that Mr. Jones and Respondent had a phone conversation that Mr. Jones penis is too big and other flirty conversations and the Respondent asked Mr. Jones to give her money to roof her building. He contended that the reliefs that the Respondent is seeking does not warrant for because he the Petitioner is divorcing the Respondent due to her infidelity. He is praying to court to give him the Custody of the three children he has stated in his reliefs sought. RESPONDENT CASE Respondent confirmed the Petitioner evidence that they moved to stay in Kumasi when the Petitioner job was moved to Kumasi. According to the Respondent business was not locative because she was new at that community and this made her to move back to Hwidiew where she has already established her dressmaking business. She further stated that life became very hard in Kumasi and that made her to enter into trading in buy and sell business and that one too did not surface and she finally moved from Kumasi to Hwidiem to enable them make ends meet. She told the court that she seek permission from the Petitioner when they were facing hardship in Kumasi and the Petitioner agreed to her request to move to Hwidiem where she has already gained business position. According the Respondent she again moved to join the Petitioner in Kumasi until finally she came to settle at Hwidiem. She said they acquired property during the marriage at Hwidiem but due to hardship the Petitioner sold the 13 rooms property and the container at Kumasi to pay off their debts and use the rest to revamp his gold business. She further stated that she wanted the marriage to continue but if the Petitioner still insisted of causing the divorce then she would like to tender into court the Petitioner one bottle schnapps he used to marry her to him. She agreed to the dissolution of the marriage. The legal issues that fall for determination are as follows: a. Whether or not the marriage has broken down beyond reconciliation. b. Whether or not the Petitioner is entitled to the custody of the three (3) children of the marriage with reasonable access to the Respondent c. Whether or not the Petitioner gave the Respondent the share of the proceeds of the sold property in the marriage d. Whether or not the Respondent is entitled to a reasonable lump sum of GHc20,000.00 as a push off package e. Whether or not the Petitioner is entitled to the reliefs sought. Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: “….. 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 nonexistence of which is essential to the claim or defence he is asserting”. Before I examine the evidence adduced at the trial, it is pertinent to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) as follows: Sections 2(1)(b),(d) & (f) and (3) of Act 367 provides as follows: “2(1) 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 fact: (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (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 (f) that the parties to the marriage have, after diligent effort, they unable to reconcile their differences. (3) notwithstanding that the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." In MENSAH V MENSAH [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough…” In the present suit, both parties have stated during trial that the marriage has broken down beyond reconciliation and they cannot live with each other anymore. In the instant case the Petitioner told the court that both families strived hard to bring the two together but when he thought of the rate the Respondent changes men here and there has made him lost the interest and love in the Respondent and can no long live with her as man and wife anymore. He further adduced that when they were facing hardship and they could not make ends meet they both agreed to sell of the marriage property of which the Respondent bore a witness to the transaction and they both enjoyed the proceeds of the sale. He adduced that the pen drive that contained the voices and conversation of the concubines and the insult poured on him has totally killed the love he had in the marriage. On the other hand, the Petitioner sees the marriage being threatened because the Respondent does not respect the marriage and he has lost all the interest in the marriage due to the conducts of the Respondent and that he sees no future in the marriage. That Respondent’s behavior also leading to the dissolution of the marriage and she does not object to the Petitioner’s petition for the dissolution of the marriage. It also shows that the marital property which was acquired during the subsistence of the marriage had been sold off and both parties enjoyed the proceeds together. The evidence on record shows that the Petitioner and the Respondent have not lived together as husband and wife since 2020 when Respondent finally moved from Kumasi to stay at Hwidiem where her business is located. Going by this the parties has not had sexual intercourse for almost two years now. As I have stated above, the Respondent has also given her consent to the dissolution of the marriage and that she cannot reasonably be expected to live with the Petitioner. In the circumstances, I rely on sections 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the marriage filed on 25th May, 2020. In determining whether to grant custody to the Petitioner or Respondent, it is said that the welfare of the child should be the fundamental or paramount consideration. This principle has been given statutory backing in all the statutes relating to children in this country and case laws including GRAY V GRAY [1971] 1 GLR 422 and BECKLEY V. BECKLEY [1974] 1 GLR 393. Also, in the case of ATTU V. ATTU [1984-86] GLR 745, Brobbey J (as he then was) held as follows: “In this country, there can be no permanent or immutable order of custody because the Matrimonial Causes Act, 1971 (Act 367), per section 27 (1) empowers the court to rescind or vary any order of custody of any child as it thinks fit. There is no precondition on the rescission or variation, save that it should be made in the best interest of the child concerned”. Section 20(1) of Act 367 provides 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.” In the circumstances, I make the following orders: a. The Petitioner is given custody of the three (3) children of the marriage (Belinda Armah Kangah–9 years, Philip Armah Kangah-7years and Blessing Armah Kangah–4years) respectively and reasonable access to the Respondent when the children are on vacations and return them a week to the reopening of the school. b. The Petitioner would continue to pay the school fees and medical bills of the Doza Armah Kangah 2 years and also provide all her educational needs and provide all necessaries of life. c. The Petitioner to maintain Doza Armah Kangah at Ghc200.00 per month into court. The Petitioner is to pay a lump sum of GHc3,000.00 as a push off package for the Respondent as she provided and performs various household chores during the subsistence of the eleven (11) years of marriage. …………………………………….. (SGD) HW MAGDALENE THOMPSON DISTRICT MAGISTRATE 9