Hawa Abdul-rahman Vrs Edward Ritter Mensah [2022] GHACC 79 (16 December 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 16TH DAY OF DECEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/34/21 HAWA ABDUL-RAHMAN ----- PETITIONER VRS. EDWARD RITTER MENSAH ----- RESPONDENT PARTIES PRESENT RITA CASSANDRA APPIAH, ESQ. HOLDING THE BRIEF OF YVONNE AMEGASHIE, ESQ. FOR THE PETITIONER PRESENT RAYMOND AFAWUBO, ESQ, FOR THE RESPONDENT PRESENT JUDGMENT FACTS: The petitioner, then a divorcee and the respondent also a divorcee at the time of the marriage got married under the Fulani customary law on 17th February, 2019, at Ashaiman-Lebanon, Accra in the Greater Accra Region. Thereafter, the parties cohabited at Community 8 Tema. There is one issue to the marriage namely Sabihah Maame Araba Mensah who was One year five months old at the time of filing the instant petition for divorce. On 3rd March, 2021, the petitioner filed the instant petition for divorce alleging that the customary marriage celebrated between herself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. An Order for the dissolution of the marriage celebrated between the parties as the marriage has broken down beyond reconciliation. b. An order for the conduct of paternity test on the issue of the marriage or a written acceptance of the paternity of the issue of the marriage by the respondent in the alternative. c. Maintenance of the issue of the marriage, payment of school fees and medical bills as and when it falls due. d. Lump sum financial settlement of GH₵100,000. The respondent entered appearance on 29th March, 2021 and filed an answer and cross-petitioned as follows; a. That the marriage between the parties to be dissolved. b. Maintenance of the only daughter be shared between the parties. c. No order as to costs. The petitioner alleges that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. According to the petitioner, after the marriage, the respondent refused to have sexual intercourse with her with the excuse that the petitioner was pregnant and he did not want to harm the unborn child. The petitioner also avers that there is no proper communication between them and the respondent leaves home and comes back at his will. The petitioner also accused the respondent of being in an amorous relationship with one Deborah who the respondent initially introduced to her as a sister, which his mother did not confirm. The petitioner also states that the respondent moved to an extension of the room in the house he prepared for his mother to live in and has denied her access to that part of the house and only grants access to the said Deborah and her children with the excuse that he did not want to grant access to anyone because he had contracted COVID-19. The petitioner further avers that the respondent does not maintain her and the child of the marriage consistently and verbally abuses her and once attempted to physically assault her, an incident which led her to report at the Domestic Violence and Victim Support Unit (DOVVSU). The petitioner states that the respondent took an amount of GH₵3,000 from the her to buy cows but failed to pay her back and owing to the habit of the respondent in taking money and refusing to pay her, she is indebted to GN Foods an amount of GH₵15,000. According to the petitioner, during the pendency of the marriage, they jointly acquired a property at Kasoa. She further states that the respondent denies paternity of the issue of the marriage and threatened to eject them from the matrimonial home. Again, she reported the issue at DOVVSU where the respondent made it clear that he was no longer interested in the marriage. The petitioner states that various attempts made to settle the issues in the marriage have proved futile and that the respondent has caused her so much stress, frustration and emotional hardship that she cannot reasonably be expected to remain married to him and that the marriage between herself and the respondent has broken down beyond reconciliation. The respondent admits that their marriage has broken down beyond reconciliation but denied the allegation of unreasonable behaviour the petitioner levels against him. The respondent states that shortly after the marriage, the attitude of the petitioner changed towards him since she treated him with disdain. The respondent complained about the behaviour of the fifteen-year-old son of the petitioner who she brought to live with them in the matrimonial home without notice to him, which led to a misunderstanding between them. The respondent further states that the petitioner treated her son as a king whilst she treated him like a dog. The respondent states that the petitioner attacks friends and family who get close to him including the Midwife who assisted her to deliver their child as well as her own sisters and family members who assisted them at the outdooring of their daughter. The petitioner also threatened to kill him with rat poison and threatens and insults him with the least provocation. True to her words that she would poison him, officials at DOVVSU found rat poison kept in the kitchen by the petitioner when they visited their home. The respondent further alleges that the petitioner was in a relationship with several men before the marriage and even after the marriage, she continued the relationship with those men. Thus, he was shocked when the petitioner asked him to buy her Zinnat, an antibiotic he claims is used for treating sexually transmitted diseases. The respondent states that he never denied the paternity of the child and it is rather the sisters of the petitioner who gossiped that the child is not his biological child and the petitioner herself in his presence kept pulling the nose of the child that she does not have the nose of her father. The respondent also denied owing the petitioner an amount of GH₵3,000 that he allegedly took to buy cows and this is the first time he is hearing that the respondent owes GN Foods. According to him, he gave the petitioner an amount of GH₵4,000 to support her spices business and an amount of GH₵5,000 gift from his family members to support their child’s outdooring as well as various sums received from her family. The respondent maintains that he is fed up with the constant threat and aggressive behaviour on his life. He also denied that during the marriage, they acquired a property at Kasoa. According to him, the marriage has broken down beyond reconciliation as a result of threat of death. On the pleadings of the parties, the evidence led and the address filed by Counsel for the respondent, the court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. 2. Whether or not the respondent is the biological father of the only child of the marriage. 3. Whether or not the petitioner is entitled to an award of maintenance for the child of the marriage. 4. Whether or not the respondent is indebted to the petitioner. 5. Whether or not the parties acquired a property jointly at Kasoa during the subsistence of the marriage. 6. Whether or not the petitioner is entitled to a lump sum of GH₵100,000 as financial settlement. ANALYSIS BURDEN OF PROOF It is trite learning that in civil cases, he who asserts must prove and the standard of proof is proof on a balance of probabilities only. This standard of proof is applicable to a petition for divorce. In the case of Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey and Others (2003-2004) SCGLR 420, 464, the Supreme Court stated that “it is trite learning that by the statutory provisions of the Evidence Decree 1975 NRCD 323, the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issue(s) asserted and or denied”. Also, in the case of Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 @901, the Supreme Court per Brobbey JSC held as follows: “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of the probabilities and would not win on that issue only because the original claim has failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.” Thus, the burden is on the petitioner to prove the facts alleged to establish the breakdown of the marriage. Where, as in the instant case, the respondent has also cross-petitioned, he bears the burden to prove his cross-petition on a balance of probabilities. ISSUE 1: Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation Under section 1 of the Matrimonial Causes Act, the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, a petitioner is required to prove the six (6) facts contained in section 2(1) of Act 367 namely, adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years, irreconcilable differences. Section 41(1) of the Matrimonial Causes Act, 1971 (Act 367), provides that the provisions of the Act apply to all monogamous marriages. However, section 41(2) permits parties in a marriage other than a monogamous marriage to apply for the provisions of the Act to be applied to their marriage: “On application by a party to a marriage other than a monogamous marriage, the court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the Court may— (a) have regard to the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognized by the personal law of the parties to the proceedings, either in addition to or in substitution for the matrimonial reliefs afforded by this Act.” From the pleadings and the evidence led by the parties, the marriage subsisting between them was celebrated under Fulani Customary Law and as such the provisions of section 41 are triggered in the instant case. In the case of Adjei v. Oforiwaa [1981] GLR 378 at page 384-385, the High Court, Kumasi, presided over by Roger Korsah J, stated: In my view any party to a marriage other than a monogamous one who seeks a relief from this court, which but for the above-quoted section the court could not have entertained must be deemed to have made an application to the court to apply the provisions of this Act to the marriage… Customary law divorce was by act of the parties not by a decree of the court. The court could be requested to ascertain whether there was a valid customary law marriage or whether such a marriage had been dissolved according to custom. But the customary procedures for the dissolution of customary law marriages did not lend themselves to dissolution of the marriage by a court action. The courts, therefore, until the enactment of Act 367, could not entertain a petition for the dissolution of a customary law marriage. The cross- petition by the defendant, being one for the dissolution of a customary law marriage, the defendant must be deemed to have requested the court to apply the provisions of Act 367 to his marriage. In applying the provisions of the said Act to a customary law marriage, the principles of divorce law upon which those provisions depend will necessarily have to be considered and applied, if justice, equity and good conscience so demand.” Also, in the case of Alhaji Abubakari v. Adisa Abubakari (unreported) [18/05/06] HI/152/2005, the Court of Appeal per Dotse JA, referencing section 41 of Act 367 stated: “By the clear provisions of the section, it is meant that any party to a marriage other than a monogamous marriage can take advantage of the provisions of the law. An undisputable fact is that, the marriage contracted by the parties in this case is customary marriage, which is a form of marriage that is potentially polygamous and therefore not monogamous.” In addition to the facts set out in section 2(1) to prove that the marriage has broken down beyond reconciliation, section 41(3) of Act 367, provides additional facts in respect of dissolution of a marriage other than a monogamous marriage, which the court may consider and states that the court shall consider the personal law of the parties sufficient to justify dissolution of the marriage, and lists facts such as wilful neglect to maintain a wife or child, impotence, barrenness or sterility, intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; and persistent false allegations of infidelity by one spouse against another. It is noteworthy that the facts stated are not exhaustive since the court is enjoined to consider other factors recognized by the personal law of the parties. In the instant case, the fact that there is a valid subsisting customary law marriage between the parties is not in dispute since the parties testified that their marriage was celebrated under Fulani Customary Law. The crucial issue is whether the customary marriage has broken down beyond reconciliation. The parties have reached a consensus that indeed their marriage has broken down beyond reconciliation but whereas the petitioner blames the respondent for the breakdown of the marriage, the respondent also puts the blame at the door step of the petitioner and accused her of a litany of conducts he deems to be unreasonable. The petitioner testified that right after the marriage, the respondent refused to have sexual intercourse with her. The petitioner accused the respondent of having an affair with one Deborah and a nurse who delivered her of her baby at the Tema General Hospital. According to her, the respondent introduced the said Deborah to her as his sister but the family members of the respondent could not confirm the familial relationship between the respondent and the said Deborah. Additionally, the petitioner testified that the respondent refuses to eat food she cooks for him but rather eats food prepared by the said Deborah. The petitioner also testified that before the marriage, when she had sexual intercourse with the respondent, she contracted vaginal infection which she had to seek medical attention for and upon the advise of the medical doctor, she informed the respondent to also seek medical attention for treatment. The petitioner denied threatening to kill the respondent and keeping rat poison in the kitchen for the purpose of poisoning the respondent since it was the respondent who informed her that he had found a rat in one of their rooms and asked her to buy rat poison. The petitioner again testified that the respondent was in the habit of verbally abusing her. The petitioner again testified that she discussed with the respondent before bringing her son from a previous relationship into the matrimonial home. However, when the boy came, the respondent instructed that she sleeps with the boy and the child of the marriage whilst he slept in the hall. Again, without provocation and without notice to her, the respondent moved into an extension of the house he had completed for his mother’s use during her visit to Ghana and denied her access to that part of the house but allowed Deborah and her children with the excuse that he did not want to come into contact with anyone because he had contracted covid. The petitioner further testified that the respondent has denied paternity of the issue of the marriage with the excuse that he has been informed that he is not the father of the issue of the marriage. She says she is aware that as a Muslim, the respondent is entitled to marry other women in addition to her but she and the child of the marriage are entitled to fair treatment which the respondent has failed to give them. The respondent asked her and the issue of the marriage to leave the matrimonial home and threatened to change the locks to the house if she failed to leave with the child. She reported the issue back to the Domestic Violence and Victim Support Unit because the respondent continued his unreasonable attitude towards them and at a meeting, the respondent made it clear that he was no longer interested in the marriage. The petitioner states that she lives in the same house with the respondent but as two different households and have not lived as husband and wife since March, 2019. On attempts at reconciliation, the petitioner testified that she reported the respondent to their Imam who invited the respondent to have a word with him but not in her presence but there was no change in the behaviour of the respondent. Several other attempts to reconcile their differences have proved futile and thus the marriage has broken down beyond reconciliation. The respondent in his evidence in-chief denied the allegation of unreasonable behaviour made against him by the petitioner. The respondent also made a litany of behaviour he deemed unreasonable on the part of the petitioner. According to the respondent, four days after the celebration of their marriage, the petitioner started disrespecting him and exhibiting domineering attitudes towards him. The petitioner also brought her 15-year-old son to come and live with them without his consent and when he asked her about it, she flared up in anger and rained insults on him for which reason he kept his distance from the child. The petitioner continued to treat him with disdain and refused to do house chores anytime he requested her to. The respondent further testified that the petitioner attacks anybody who gets close to him including the midwife who helped deliver their child at the Tema General Hospital as well as her own sisters and family members. The respondent further stated that he never denied the paternity of the child but rather, it was the sisters of the petitioner who gossiped that he is not the father of the child and the petitioner herself in his presence pulled the nose of the child that she does not have the nose of her father and she will take her to Cameroon and live there. This, according to him, left him wondering whether he was the father of the child. According to the respondent, a DNA test conducted on himself and the child of the marriage after the petitioner filed the instant petition for divorce excludes him as the biological father of the child. In support, the respondent tendered in evidence Exhibit 1, the result of the DNA test from DNA Diagnostic Centre which excludes the respondent as the father of the child, Sabihah Araba Mensah. Also, based on the relief sought by the petitioner for a paternity test to be conducted on the child or in the alternative, the respondent acknowledges paternity in writing, and upon an application by the respondent, the court ordered a DNA test to be conducted on the child of the marriage and the Reoprt from Synlab Ghana Ltd. States that “Paternity of Edward Ritter Mensah for Sabihah Maame Araba Mensah practically excluded” which means that the respondent is not the biological father of the child. The respondent further testified that the petitioner had several men in her life prior to the marriage and after the marriage, she continued the relationship with those men with whom she communicates with in Hausa and Fulani languages in his presence and at odd hours knowing that he does not understand those languages. He was therefore shocked when the petitioner requested him to buy her an antibiotic called Zinnat for treatment of sexually transmitted diseases since the said antibiotic is only prescribed for the treatment of sexually transmitted diseases. The Respondent further testified that the marriage to the petitioner has made him to live in constant fear of his life because she constantly threatens to disgrace, humiliate or stab him amid verbal and unprintable insults and abuses. The respondent further testified that the petitioner threatens to poison him, and at least opportunity, curses him at the least opportunity causing him emotional torture and among others, calling him useless, stupid and foolish man with shouts of “I will deal with you” “I will finish you”. According to him, true to her words, he found rat poison the petitioner had kept in the kitchen which the officials of DOVVSU witnessed same including severe hot burns on their daughter on two occasions. In support, he tendered in evidence Exhibit “2”, a photograph of a green container with an inscription and the image of a rat on it purporting to be the rat poison. It is noteworthy that the substance was not tendered in evidence and there is no scientific analysis done on the substance to prove that it is rat poison however, the petitioner in her evidence stated that on the instructions of the respondent, she bought rat poison to eliminate a rat which had found its way into their house but the photograph the respondent tendered in evidence is not what she purchased. Additionally, the respondent testified that the petitioner is so violent and she attacked him and anybody who comes to visit him and it is the violent nature of the petitioner which keeps him away from her. He states that the constant threat has scared him to the extent that he has kept his distance from the petitioner and he is afraid to go home after work due to the maltreatment of the petitioner. From the evidence led by the parties, it can be gleaned that the petitioner persistently accused the respondent of infidelity with the said Deborah and the Midwife at Tema General Hospital without a solid basis for the accusation. The respondent on the other hand has produced evidence to show that the child of the marriage who was one year, five months at the time of filing the instant petition for divorce is not his biological daughter. This means that someone other than the respondent had sexual intercourse with the petitioner. The petitioner under cross-examination stated that she disputes the two DNA reports but failed to provide evidence to the contrary that the respondent is indeed the father of the child. In the case of Hume v. Hume McAuliffe [1965] Times, March 3 CA, a finding of adultery was made against a wife on the evidence that she had given birth to a child of whom blood tests established that the husband could not be the father. In the instant case, can the court, based on DNA results conclude that the petitioner has committed adultery? In my view, in the circumstances of this case, it will not be safe to conclude that it was adultery. The parties claim that they got marriage on 17th February, 2019 and at the time of filing the instant petition for divorce, at exactly two years after the marriage, they gave the age of the child as one year five months old which means that all things being equal, the petitioner delivered the child 7 months into the marriage, the parties not having led evidence to explain the circumstances, it can be that the pregnancy happened before the marriage and as such does not constitute adultery per the definition of adultery under section 43 of Act 367, which is “the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse” On the evidence, it is safe to conclude that the behaviour of the petitioner to allow the respondent to maintain a pregnancy which is not his and also maintain the child till date is unreasonable. It also confirms his allegation that even after the marriage, the petitioner was still in contact with her ex- boyfriend. The respondent also mentions that the petitioner requested him to buy her Zinnat , an antibiotics which is used for the treatment of sexually transmitted diseases to say that the petitioner was having extra- marital affairs. In my respectful view, although the petitioner admitted that she had vaginal infection, there is no medical report to show that it was a sexually transmitted disease. There is also no medical evidence that antibiotic like Zinnat is used only in the treatment of sexually transmitted diseases. The totality of the evidence shows that the marriage between the parties has not been all rosy and contrary to the contention of the petitioner that it is the respondent who has behaved unreasonably without proving same, the evidence points to the unreasonable behaviour exhibited by the petitioner towards the respondent in the marriage. Accordingly, having regard to the persistent accusation of infidelity made by the petitioner against the respondent, and the fact that the respondent has had to endure the pain of having maintained a pregnancy that was not his, having named the child, built emotional attachment with the child and maintained the child diligently only to be hit with the hard truth that he is not in fact the biological father of the child. I therefore hold that the petitioner has behaved in such a way that the respondent cannot reasonably be expected to live with her. I accordingly dismiss the petition for divorce and grant the cross-petition for divorce and decree for the dissolution of the customary marriage celebrated between the parties on 17th February, 2019. ISSUE 2: Whether or not the respondent is the biological father of the only child of the marriage. Under Section 32 (1) of the Evidence Act, 1975 (NRCD 323), a child born during the marriage of the mother is presumed to be the child of the husband of the child’s mother at the time of the birth. The presumption applies to both monogamous and polygamous marriages. Thus, once a child is born during the subsistence of the marriage the respondent is presumed to be the father until there is evidence to rebut it. In the instant case, as discussed supra, there are two scientific reports all indicating that the respondent is not the biological father of the child in issue. In court proceedings where the paternity of a child is in issue, DNA testing has been found to be a reliable means of determining the issue. In the case of Asante (No. 1) v. the Republic (No.1) [2017-2020]1 SCGLR 132 @ 144, underscored the necessity for DNA testing not only in family suits but in criminal proceedings as well when it stated: “DNA is derived from the chemical substance Deoxyribonucleic Acid (DNA) that is used to encode the genetic information in living organisms. The usual objective of forensic DNA analysis is to detect variations in the genetic material that differentiate one individual from another. Its accuracy is rated very high and it is considered reliable”. The High Court in the case of Gloria Odartey Lamptey V. Nii Odartey Lamptey (2017) JELR 107695 (HC) High Court · BDMC 454/2013 delivered on 14 June 2017, stated that DNA is an accurate result to prove the paternity of a child. The court in that case relied on it to exclude the respondent as the father of the three issues of the marriage. In the instant case, as shown in the analysis of the paternity issue, supra, the two DNA test results have all excluded the respondent as the biological father of the child in issue. The petitioner under cross-examination by counsel for the respondent disputed the results but did not provide any evidence to the contrary. From the results, the respondent has successfully rebutted the presumption that the child who was born during the marriage to the petitioner is the child of the respondent. I therefore hold that the respondent is not the biological father of the child by name Sabihah Maame Araba Mensah. ISSUE 3: Whether or not the respondent is indebted to the petitioner. The petitioner in her pleadings alleged that during the subsistence of the marriage, the respondent on several occasions took sums of money from her which he sometimes reimbursed and at other times too failed to pay back. On one such occasion, the respondent took an amount of GH₵3,000 from the petitioner to buy cows but failed to pay back. Again, the petitioner alleged that due to the respondent’s attitude of not paying back monies that he owes her, she is indebted to GN Foods, a company the petitioner claims she used to work for in the sum of GH₵15,000. The respondent vehemently denied owing the petitioner since she used to sell spices but is currently not working and as such, she does not have such an amount to lend to him since he provides her with all her needs in the house. The respondent having denied owing the petitioner, the onus lies on the petitioner to adduce cogent and admissible evidence to prove her averments on a balance of probabilities. To prove her case, the petitioner repeated her averments on oath that the respondent is indebted to her. Under cross-examination by Counsel for the respondent, the petitioner testified that he trusted the respondent and as such she did not document all the financial assistance that she gave to the respondent. In support of her case, she called one Alfred Jackson to testify. PW1 testified that he and the petitioner are both Sales Personnel for a company in Tema, formerly known as GN Foods but now Ignis Industries Limited which deals in the sale of tin tomatoes. According to him, after selling the goods, they send proceeds to the company. Somewhere in 2019, there was a consignment of goods and the petitioner took some from him for subsequent sale and he distributed to her as sales personnel but has since been unable to pay for the goods for onward transfer to the company. Due to this, the company has been demanding the amount from him which remains unpaid. Under cross-examination by counsel for the respondent, when challenged on his identity as an employee of GN Foods, PW1 testified that he does not know anything about the marital issues between the parties and he does not have any evidence by way of I. D card or employment letter to that effect. He also states that there is no documentary evidence showing that he supplied a quantity of tin tomatoes worth that amount to the petitioner. In one worth breath the petitioner states that she owes the company, in another breath, the witness states that he supplied the goods and the debt is owed to him. On the evidence led by the petitioner and the defence put up by the respondent, there is no evidence that the respondent took such an amount of money from the petitioner to buy cows. There is also no evidence of the petitioner’s indebtedness to GN Foods since she did not lead any evidence on her having ever been in the employment of GN Foods and any goods supplied to her by the company. Assuming, arguendo, that the company supplied her with goods valued GH₵15,000, the evidence on record does not show that it was the respondent who asked her to take the goods or that the goods allegedly taken were supplied to the respondent. There is also no causal link between the money she claims the respondent took to buy cows and tin tomatoes she purchased on credit. I therefore hold that the respondent is not indebted to the petitioner in the sum of GH₵3,000. ISSUE 4: Whether or not the petitioner is entitled to an award of maintenance for the child of the marriage. Under section 22(2) of the Matrimonial Causes Act, 1971 (Act 367), a court in any proceedings under the Act, on its own motion or an application by a party, may make an order concerning an award of custody of a child to any person, regulate the right of access of any person to the child, provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. However, the child must be a child of the household. Section 41(4) of Act 367, “In the application of this Act to any marriage under customary law, the words "child of the household" shall be construed as including any child recognised under customary law as a child of the parties.” Section 43 of Act 367 defines a child of the household as follows: “any child, whether the natural or adopted child of both or either of the parties, or any other child who is treated by both parties as a permanent member of their household;” In the instant case, the evidence on record shows that the respondent is not the biological father of the child in issue. From the evidence, the petitioner was living with the respondent and the respondent was maintaining the child and continued to maintain her. The court having found that the respondent is not the father, and the respondent not having declared his intention to continue to consider the child as a child of the household after the dissolution of the marriage, and having stated in his evidence that the court should not make any order regarding maintenance for the child, there is no legal justification for the court to still hold him liable to maintain the child. The parties have also not led any evidence on the Fulani customary law on the responsibilities of the respondent towards the child under such circumstances. Thus, the interim order made by the court for the petitioner to rent accommodation and to maintain the child pending the final determination of the suit on 28th January, 2022 is discharged. ISSUE 5: Whether or not the parties acquired a property jointly at Kasoa during the subsistence of the marriage. Article 22 (2) & (3) (a) &(b) of the 1992 Constitution states that: 22(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 referred to in clause (2) of this article - (a) Spouses shall have equal access to property jointly acquired during the marriage; (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of marriage". In the recent Supreme Court’s decision in Peter Adjei v. Margaret Adjei (unreported) [Suit No. J4 06/ 2021], delivered on 21st day of April, 2021, the Court per Appau, JSC reiterated the position of the law when his Lordship stated at page 10 as follows: “…any property that is acquired during the subsistence of the marriage, be it customary or under English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on equality is equity principle. This presumption of joint ownership is, however, rebuttable upon evidence to the contrary… What this means in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as a “jointly-acquired” property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired, irrespective of whether there was direct, pecuniary or substantial contribution from both spouses in the acquisition.” It is trite learning that parties in a marriage have the constitutional right to acquire a separate property within the marital union and properties acquired by gift, through inheritance or through individual loan not fully liquidated, are not regarded as marital property. Therefore, each case is determined on its particular facts and the evidence led to rebut the presumption of joint acquisition. The petitioner in her reliefs endorsed on the petition did not claim a share of a property acquired during the subsistence of the marriage but in her petition for divorce and her reply to the answer to the petition for divorce pleaded that during the subsistence of the marriage, they jointly acquired a property located at Kasoa. According to her, before the marriage, the respondent had already acquired the land but during the subsistence of the marriage, the respondent took money from the petitioner when he was constructing a fence wall on the parcel of land as well as other structures constructed on the land in dispute. The respondent denied that they acquired a property at Kasoa and stated that at the trial he will put the petitioner to strict proof of this allegation. Despite the fact that the petitioner did not claim joint ownership of a property as an ancillary relief, section 21 enjoins the court if satisfied in a divorce proceeding that either party holds movable or immovable property part of or all of which belongs to the other to order transfer or conveyance of the interest to the other party entitled to it upon such terms as it thinks just and equitable. As such, the court cannot turn a blind eye over the issue raised by the petitioner in her pleadings regarding her contributions to property jointly acquired by the parties during the subsistence of the marriage. The petitioner in her evidence before the court testified that during the subsistence of the marriage, the respondent and herself jointly acquired a property at Kasoa. According to her, the respondent had already acquired the parcel of land before they got married but during the subsistence of the marriage, he took money from her when he paid the digging fee demanded to commence a construction of a fence wall. In support, she tendered in evidence Exhibit “A”, a receipt dated 11th September, 2018 for an amount of GH₵5,000 being full payment for 10 plots of land. According to her, the respondent further took additional monies from her to construct the structure on the land. In support, she tendered in evidence Exhibit “B” series, which are photographs of an uncompleted storey building with the petitioner standing in front. Under cross-examination by Counsel for the respondent, the following ensued; Q: I am putting it to you that the Respondent has not taken a pesewa from you to construct a fence wall or any structure as you stated in paragraph 39? A: My Lord, the respondent took the money from me not because he wanted to purchase land but because he stated he wants to build a structure on the land to protect the land because he was about to lose that land. Q. How much in total is the money that you are alleging you gave him. A: My Lord, I did no calculate the amount and I did not document the amount I gave to the respondent but I started giving the respondent money in the year 2016. The respondent in his defence denied same and testified that he has never acquired any property with the petitioner at Kasoa. According to him, he has been building for his younger brother who lives outside Ghana prior to the marriage through remittances sent to him. He tendered in evidence Exhibit 4 series; receipts of remittances received from one Ewure Esi Ellis. The petitioner admitted under cross-examination that the property was acquired before the marriage. The receipt tendered by the petitioner is in the name of the respondent and the date on the receipt precedes that of their marriage which corroborates the testimony of the respondent that the land was not acquired during the marriage. Also, the receipt of remittances to the respondent is in the name of one Esi Ellis and it is not clear whether it is the same brother the respondent made reference to that he was building for. On the evidence, the petitioner has failed to prove that this uncompleted storey building was acquired by them during the subsistence of the marriage which should be shared equally. I therefore dismiss the claim of the petitioner to a property located at Kasoa. ISSUE 6: Whether or not the petitioner is entitled to a lump sum of GH₵100,000 as financial settlement. Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) states 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 case of Aikins v. Aikins (1979) GLR 233, Sarkodee J (as he then was) held in holding 4 that: “In considering the amount payable as lump sum, the court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage…” Also, in the case of Barake v. Barake [1993-1994] I GLR 635 at page 666, where Brobbey J (as he then was) stated: “On such an application, the court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.” The essence of financial provision is not to enrich one spouse at the expense of the other but to cater for a genuine financial need of a spouse upon dissolution of the marriage. Thus, in the case of Gamble v. Gamble [1963] 1GLR 416 the court held in holding 2 that: “the court will not look with sympathy upon a wife who makes no effort to secure employment but is content to subsist on an award of alimony.” The factors a court considers in determining what is “just” and “equitable” under section 20 of Act 367, are stated in the case of Obeng v. Obeng [2013] 63 GMJ 158, where the Court of Appeal held that what is “just and equitable” may be determined by considering the following factors: the income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage.” The petitioner prays the court to award her an amount of GH₵100,000 as lump sum financial provision against the respondent. The respondent denied this claim and stated that when the parties went to DOVVSU for settlement, he was advised to support the petitioner in her spices business which he gave her an amount of GH₵4,000 in addition to the GH₵5,000 gift his family members gave in support when they had the outdooring. The petitioner admits same but state that the monetary gift received from family and friends would amount to GH₵3,000 and not GH₵5,000, as maintained by the petitioner. Again, in her evidence, she stated that this amount of GH₵4,000 was given to set her up in business as requested by the officials of DOVVSU. Counsel for the respondent is claiming an amount of GH₵ 50,000, to the respondent for the anxiety, torture and maintenance of the child forced on him through deception. With much deference to Learned Counsel for the respondent, the award of financial provision is need-based and it is not intended to punish a spouse whose conduct has led to the breakdown of the marriage. Admittedly, a court of justice cannot treat the fact that the respondent has had to father and maintain a child who is not biologically related to him under the circumstances he found himself. However, that alone is not a basis for refusing an award of financial provision if on the evidence the petitioner is entitled. The respondent has described himself as a retired warehouse manager and described the petitioner as a trader. The respondent states that he is over 60 years but there is no evidence of the age of the petitioner who is relatively younger than the respondent and has more working years ahead of her. Also, on the evidence, the respondent has set the petitioner up in her trade and she should be financially independent with prudent management of the business. The parties were also married for only two years. On the evidence, the parties were living in the respondent’s mother’s house and pending the final determination of the suit, the court ordered the respondent to find alternative accommodation for the petitioner. Consequently, based on the circumstances, I do not consider it just and equitable to order the respondent who is a retiree who has set up the young and energetic petitioner in business to pay a lump sum financial provision of GH₵100,000. I accordingly dismiss the claim for lump sum financial provision. CONCLUSION In conclusion, I hold that the customary marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation on account of unreasonable behaviour of the petitioner. I accordingly dismiss the petition and grant the cross-petition for divorce in the following terms: 1. I hereby grant a decree for the dissolution of the customary marriage celebrated between the petitioner and the respondent on 17th February, 2019, at Ashaiman-Lebanon, Accra in the Greater Accra Region. 2. I hereby declare the respondent not the biological father of the only issue of the marriage by name Sabihah Maame Araba Mensah who was aged One (1) year five months at the time of filing the petition for divorce. 3. I hereby dismiss the claim for maintenance for the child in issue. 4. No order as to financial provision for the petitioner. 5. Cost of GH₵5,000 against the petitioner. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) (SGD) 26