Christiana Annan Vrs Eric Annan [2022] GHACC 155 (30 September 2022)

IN THE CIRCUIT COURT ‘1’, ADENTAN, ACCRA, BEFORE HER HONOUR JUDGE DORA G. A. INKUMSAH ESHUN (MRS.) SITTING ON FRIDAY THE DAY OF SEPTEMBER 2022 th SUIT NO. C5/01/2020 CHRISTIANA ANNAN PETITIONER V. ERIC ANNAN RESPONDENT JUDGMENT On 27 th February 2020, a Motion Ex-Parte for Leave to File Petition to Dissolve Customary Law Marriage Pursuant to Section 41(2) of the Matrimonial Causes Act 1971 (Act 367) filed by the petitioner was granted under section 41(2) of the Matrimonial Causes Act, 1971 (Act 367) and the precedent of the High Court in Mensah v. Berkoe [1975] 2 GLR 347. This judgment is given on the merits of the substantive petition that was filed on 9 th March 2020. The parties were married under Akan customary law in 2010 at Enyan Denkyira in the Central Region and cohabited at the respondent’s family house at Oyarifa Teiman in the Greater Accra Region thereafter. The petitioner is a trader while the respondent is a mason, and the parties have an eight-year-old son. Each party has three older children each from previous relationships. The petitioner filed for divorce on 9 th March 2020 stating that the marriage has broken down beyond reconciliation because the respondent has behaved in such a way that she cannot reasonably be expected to live with him, and the respondent has committed adultery. She prayed for the following reliefs: 1. 2. 3. a dissolution of the marriage, a lump sum financial settlement from the respondent, an order directing the respondent to rent a reasonable chamber and hall for the petitioner and their child. 4. an equitable distribution of the land at Ayi Mensah on which 4 chamber and hall buildings with porches were constructed, and 5. any other order the court deemed fit. The respondent prayed that the petitioner be denied the lump sum as financial settlement and prayed that the petitioner continues to occupy the room he rented for her at Teiman for two years. He insisted the parties have not jointly acquired land at Ayi Mensah. Therefore, there is no existing property to be distributed equitably between the parties. The respondent cross-petitioned for; 1. an order for the dissolution of the customary marriage celebrated between the parties sometime in 2010, at Enyan Denkyira, and 2. an order for a declaration that the respondent’s family land given to him as a family member was not property jointly acquired by the parties during the marriage. The parties were referred to Court-Connected Alternative Dispute Resolution (CCADR). However, the mediator reported on July 17, 2020, that they could not reach a settlement. Under Ghanaian law, a marriage may be dissolved where the parties prove that it has broken down beyond reconciliation [section 2(1) of the Matrimonial Causes Act, 1971 (Act 367); Mensah v. Mensah [1972] 2 GLR 198-209]. To prove that a marriage has broken down beyond reconciliation, a party shall satisfy the Court of one of the facts found in section 2(1)(a) – (f) of Act 367. The provisions in Act 367 apply to customary marriages in sections 41(3) and (4) of Act 367 as follows; “In the application of section 2(1) [which states that Act 367 shall apply to monogamous marriages] to a marriage other than a monogamous marriage, the Court shall consider the facts recognised by the personal law of the parties as sufficient to justify a divorce, including in the case of a customary law marriage, but without prejudice to the foregoing, the following: (a) wilful neglect to maintain a wife or child; (b) impotence; (d) barrenness or sterility; (e) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; and (f) persistent false allegations of infidelity by one spouse against another.” (4) Subsection (3) shall have effect subject to the requirements of justice, equity and good conscience”. The issues to be determined in this petition are whether the; a) respondent has behaved in such a way that the petitioner cannot reasonably be b) c) d) expected to continue living with him, respondent has committed adultery, respondent should be ordered to pay for accommodation for the child and the petitioner, and property built on the land at Ayi Mensah should be distributed equitably between the parties. To determine whether the behaviour of the respondent is such that the petitioner cannot reasonably be expected to live with him [section 2(1)(b) of Act 367], the court must look at the whole history of the marriage. According to HL Justice Hayfron-Benjamin in Mensah v. Mensah [1972] 2 GLR 198: "The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.” The petitioner testified that when she was seven months pregnant with the child of the parties who was 9 years old in June 2020, it came to her notice that the respondent was having an affair with one Amerley. When she confronted the respondent about the affair, he beat her up and she reported it to her elder brother Sowah who lives at Botwe. Her elder brother advised her not to report the matter to the police and promised to talk to the respondent. The respondent bore the cost of her medical bills when she was admitted for two weeks. When Amerley gave birth to two children for the respondent, she would tease and insult the petitioner and her daughter at the least provocation. Sometime in 2017, Amerley told the respondent that the petitioner’s daughter insulted her. The respondent asked the petitioner’s daughter and sister Madam Alberta Aggrey (PW1), who was living with them and helping the petitioner in her trade, to vacate the matrimonial home. When the petitioner explained that Amerley’s accusation was not true, the respondent beat her up and insisted they vacate the house immediately otherwise he would throw their things out. When the petitioner attempted to prevent the respondent from packing their things from the matrimonial home, he chased her onto the streets and beat her there mercilessly. She was only able to escape by the intervention of some neighbors. This testimony was corroborated by PW1 who testified that Amerley made the accusation in her presence on their return from the market and left without explaining what had really happened. The respondent beat the petitioner and attempted to beat her too, but the petitioner stopped him from doing so, informing him that PW1 was pregnant. Then the respondent asked PW1 to vacate the house with Benedicta. PW1 testified that when they returned from the market the next day, the respondent had thrown their things outside the house, so she took her things and left. The petitioner informed some elders of the respondent’s family about what took place, but they were unable to resolve the matter. Three days after the incident, the respondent packed his belongings and deserted the matrimonial home for about two and a half years without the petitioner’s consent, to live in their uncompleted house at Ayi Mensah with his paramour Amerley and stopped maintaining the petitioner and their son. PW1 testified that the petitioner informed her that the respondent had deserted the house to live in the Ayi Mensah house that they were constructing. The petitioner bore the cost of their child’s maintenance and school fees during that period. The respondent denied that he has behaved in such a way that the petitioner cannot reasonably be expected to live with him and testified that it is the petitioner who has refused to show him respect privately and in public and has failed to perform household chores expected to be performed by a woman of the marriage. According to the respondent, the petitioner brought her 30-year-old sister to live with them in the matrimonial home at his family house at Teiman without his permission, consent or approval. The petitioner’s sister could insult him with impunity while she stayed with the parties. Various attempts to get the petitioner to send her sister back proved futile and the petitioner told him that he would rather leave the matrimonial home for her and her sister. The petitioner removed her engagement ring, threw it at him and told him she was leaving the marriage and leaving the family house with her sister. The respondent denied abandoning their home for the property at Ayi Mensah or warning the petitioner not to step foot in the house. He said he was forced to leave them behind at the family house at Teiman and moved to the Oyarifa UT area because he could no longer tolerate their insulting behavior. The petitioner testified that two and a half years after the respondent moved out, he visited the house at Teiman and informed her that he had found a place for her because his family had requested the room she lived in. The petitioner protested and insisted that the respondent should divorce her properly due to his desertion, abandonment of his duties as her husband and all the harsh treatment he had subjected her to. When she returned form the market the next day, she met the respondent moving her things from the room. The petitioner reported him to the Legal Aid Office, Accra, where the respondent was invited for mediation. The petitioner spent two days with her sister Bettina Aggrey at Kasoa and on her return, the matrimonial home was empty. She returned to her sister at Kasoa and reported the development to the mediator at Legal Aid. When the parties met with the mediator, the respondent admitted he had moved all the petitioner’s things to an unknown location, and he was directed to show the petitioner where they were. The petitioner realized the place was not conducive and reported it to the mediator on the next date. This testimony was corroborated by PW1 who testified that the respondent admitted that he moved the petitioner’s things out of their room. After attending mediation at the Legal Aid Office in Accra, PW1 went with the parties to inspect the room the respondent rented at Teiman and found it not conducive. The respondent testified that family elders informed him they would need the room he was staying in at Teiman for the use of other family members attending a family funeral and asked him to find other accommodation. He rented a new place at Teiman and paid the rent advance for two years. However, the petitioner told him she would not leave the family house for the new place. Since the family gave him a time limit to vacate the room, he had to pack his belongings to a new place. When he asked the petitioner who was at Kasoa to come and assist him with the packing, she declined. After he packed out of the family house, the petitioner came to Teiman and lodged a false complaint against him at the Legal Aid Office in Accra. At the Legal Aid Office, the petitioner was asked to inspect the new place and she confirmed to the Legal Aid officers that her belongings were intact. According to the petitioner and PW1, the respondent has customarily married Madam Amerley and had their marriage blessed in church. The respondent is living with Madam Amerley in the house the petitioner toiled with the respondent to build at Ayi Mensah. The respondent denied subjecting the petitioner to humiliation and embarrassment and testified that it is rather the petitioner who insults him in private and public. It has not been possible for them to live together for over two years because of the petitioner’s’ disrespectful and disparaging conduct. The court finds from the evidence that the respondent’s assault of the petitioner is contrary to sections 3 and 1 of the Domestic Violence Act, 2007 (Act 732). The respondent moved with another woman into the home being built by the parties and packed the petitioner’s things out of their matrimonial abode, depriving the petitioner of accommodation as the new accommodation he rented for the petitioner was not conducive. This is a violation of the consortium expected and due in a marriage – which is defined as “…the right of a spouse to the company, assistance, affection and fellowship of the other” . The respondent’s allegation that the petitioner insults him in private and in public, though uncorroborated, also amounts to the denial of the consortium due him by the petitioner. The court finds from the evidence that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live with him. To determine whether the marriage has broken down beyond reconciliation, the court may also consider whether the parties have, after diligent effort, been unable to reconcile their differences under section 2(1)(f) of the Matrimonial Causes Act, 1971 (Act 367); Danquah v Danquah [1979] GLR 371]. The requirements to prove this fact are that: (a) there should exist differences between the parties, and not disputes, (b) the parties should have made diligent efforts to reconcile these differences, and (c) the parties should have been unable to effect the reconciliation of the differences. In Mensah v. Mensah [1972] 2 GLR 198-209, Justice Hayfron-Benjamin held that, “…the differences should be such as would make it impossible for the marriage to subsist” … and they “…must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other.” The acts of domestic violence visited on the petitioner by the respondent, the respondent’s vacation of the matrimonial home to live with Madam Amerley in the house allegedly built by the parties and the allegations of verbal abuse directed at the respondent by the petitioner are real differences the parties have been unable to resolve. The parties are agreed that they have not lived together as husband and wife for about two and a half years. From the petitioner’s testimony, the attempts to mediate the differences between the parties at the Legal Aid Office were unsuccessful. The court finds that the parties have shown that they have differences that they have been unable to reconcile after diligent effort [section 1(f) of Act 367] and they have not lived together for at least two years before the petition was filed [section 2(1)(d) of Act 367]. In section 2(1)(a) of the Matrimonial Causes Act, 1971 (Act 367), a petitioner shall satisfy the court of the fact that the respondent has committed adultery and that by reason of the adultery, the petitioner finds it intolerable to live with the respondent. In section 43 of Act 367, adultery is defined as “... the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse”. Justice Kingsley Nyinah held in Quartey v. Quartey [19782] 1 GLR 6 – 21 that, “… the burden upon the petitioner to establish an affirmative case of adultery requires the adducement, by him, of proof that is at once cogent and reasonably conclusive. Thatonus cannot be lightly shrugged off by evidence or proof that is tainted, indifferent, suspicious or uncertain”. The petitioner testified that it came to her notice that her husband was having an affair with one Amerley when she was seven months pregnant with their son. When she confronted him, he beat her up despite her condition. Later, Amerley gave birth to two children for the respondent. The petitioner said it has come to her notice that the respondent has since performed the customary rites as well as a church blessing for Amerely and they are living in the house the parties toiled for years to build at Ayi Mensah. The respondent denied committing adultery and testified that he married the petitioner under Akan customary law and not the Ordinance. As a result of the petitioner disrespecting him, refusing to cook or perform household chores as expected of a woman of the marriage for him and not showing respect to his parents, the respondent’s father asked him to marry another woman who would respect him and his family and perform household chores for him. According to the respondent, the petitioner’s hostility and abusive conduct towards his parents, particularly his father and relatives, “forced” them to marry Amerley for him. In Hume v. Hume & McAuliffe [1985] Times, Feb 25, a wife was found to have committed adultery when she gave birth to a child who was proven by DNA test results to belong to a man other than her husband. The court finds from the facts that considering that the respondent had two children with Madam Amerley and lived with her before performing the necessary customary marriage rites, the respondent committed adultery. The evidence also shows that by reason of that adultery, the petitioner finds it intolerable to live with the respondent. Section 22(2) of the Matrimonial Causes Act, 1971 (Act 367) empowers the court to make an order concerning a child of the household that it thinks reasonable and for the benefit of the child. “The Court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child” [section 22(2) of Act 367]. In section 22(3) of Act 367 the court may make an order under section 22 of Act 367 to; (a) award custody of the child to any person; (b) regulate the right of access of any person to the child; (c) 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”. In section 47(1) of the Children’s Act, 1998 (Act 560), a parent who is legally liable to maintain a child or contribute towards their maintenance is under the duty to supply the necessaries of health, life, education, and reasonable shelter for the child. The petitioner testified that the respondent has maintained the children inconsistently after deserting the matrimonial home in 2017 and ceased paying maintenance in February 2022. After she resisted his efforts to chase her daughter and sister out he stopped maintaining her and their son. She had to bear the cost of maintenance and school fees for their son for the period. After two and a half years, the respondent informed the petitioner that he had found another place for her elsewhere because his family had requested for his room. The petitioner protested and insisted that he divorce her properly due to his desertion, abandonment of duties as her husband and the harsh treatment he had subjected her to. After the respondent took the petitioner’s things from his family house to another place that she did not find conducive, the mediator took steps to recover the monies she spent on the child’s fees for the two-and-a-half-year period. The mediator advised the respondent to rent a chamber and hall for the petitioner and their child and pay the petitioner a lump sum as alimony. This was declined by the respondent who told the petitioner to send the matter wherever she pleased. The respondent denied that he has not maintained the child and testified that as a responsible father, he maintains him and pays all his school fees at Bortianor. According to the respondent, he is not in gainful employment, and he cannot rent another place for the petitioner because he has paid rent for two years at Teiman. Considering that it is the respondent and petitioner’s duty to provide the necessaries of life, health, education and reasonable shelter for their child, thecourt finds that the respondent’s excuse that he has already paid rent is not tenable. Once the rent has not been used, it is the respondent’s right to re-claim it. The parties did not pray for custody of the child. However, considering that the respondent did not challenge the petitioner’s physical custody of the child, custody of the eight-year- old son of the parties shall remain with the petitioner and the respondent shall have reasonable access to him [section 22 of Act 367 and sections 43 and 45 of Act 560]. The petitioner shall pay for the child’s school fees and supplies while the respondent shall pay for the child’s other educational expenses. The respondent shall also pay GH¢4200 towards the accommodation of the child and the petitioner into court by October 10, 2022. Thereafter, the respondent shall pay 50% of the cost of accommodation for the petitioner and child until the child attains the age of majority or the petitioner re-marries, whichever comes first. The petitioner prayed for equal distribution of land the parties developed during the marriage. The respondent prayed that the land was not jointly acquired during the marriage and was given to him by his family. In section 20(1) of Act 367, “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 of or as part of the financial provision at the court things just in equitable”. “Payment and conveyances under this section may be ordered to be made in gross or by instalments” [section 20(2) of Act 367]. The petitioner testified that in 2016 the respondent told her he had sighted a piece of land that he had since acquired at Ayi Mensah. She frequented the site with her daughter Benedicta Turkson to assist the respondent to work on the land by doing menial jobs such as fetching water, carrying mortar and cooking for the respondent and the workers. The petitioner said she would sometimes pre-finance the purchase of building materials when the respondent was financially constrained. They put up three chamber and hall buildings with porches on it and the respondent constructed one more room after they were separated. The petitioner’s sister, Albertha Aggrey (PW1) corroborated the petitioner’s testimony. She testified in her witness statement that she visited the petitioner frequently while she was in school and moved in with them sometime in 2015. The respondent informed her and the petitioner that he had acquired land at Ayi Mensah and the petitioner and her daughter used to frequent the site to perform various jobs such as fetching water and cooking for the respondent and his workers. PW1 did not go with them because the petitioner left her to take care of her business in the market. She further testified that the respondent even borrowed monies from her and the petitioner to purchase building materials whenever he was financially constrained. The respondent denied that the parties jointly acquired a plot of land at Ayi Mensah and put up four separate chamber and hall buildings with porches on it. He testified that his family gave him a piece of family land at Oyarifa through Richard Anum Ofoli, the acting head and lawful representative of the Ofoli Solor Family of Oyarifa. His brother Mr. William Soya Okpoti assisted him to build three chamber and hall buildings on it. The respondent said he has given out these buildings to his three adult children who are facing accommodation problems. Respondent counsel put it to the petitioner that the respondent’s brother, Mr. William Okpoti Sowah, a joint owner of Midwest Construction Co that puts up buildings for sale, is the one who built the three-bedroom apartments for the respondent in November 2014 and completed them by 1 st January 2015. The petitioner denied this, insisting that when her husband told her he had bought land at Ayi Mensah, she and her daughter Benedicta Turkson went to work on the land. The respondent never told her that it was his brother who was building the houses. According to the petitioner, the parties were supposed to have moved into the property two years ago, but the respondent did not take her there. The respondent tendered Exhibit 2 series – a copy of the lease agreement between Richard Anum Ofoli Acting Head and Lawful Representative of the Ofoli Sorlor family of Oyarifa and Eric Okpoti Annang dated 27 th May 2007 and signed by M. Anum as witness for the respondent. He also tendered a building permit billing form from the La Nkwantanang District Assembly in the name of Eric Okpoti Annang for a proposed single-storey residential building (Exhibit 3). In his address, respondent counsel submitted that the petitioner failed to lead credible evidence that the land was acquired in the parties’ joint names after 2020 when the petitioner was married to the respondent and not in 2007 as stated in the indenture. Counsel for the petieiorn in his address, cited the Supreme Court case of Peter Adjei v. Margaret Adjei Civil Appeal No. J4/06/2021 where it was held that, “… any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on the equality is equity principle… It is property that has been shown from the evidence adduced during the trial, to have been jointly acquired, irrespective of whether or not there was direct, pecuniary or substantial contribution form both spouses in the acquisition.” In section 14 of the Evidence Act, 1975 (NRCD 323) a party who makes an assertion has the burden of persuasion as to the existence or non-existence of the fact that is essential to the claim or defence he is asserting unless the burden is shifted, or the law provides otherwise. Section 12(1) of NRCD 323 states that the burden of persuasion requires proof by a preponderance of probabilities, defined in sub-section (2) as “that degree of certainty of belief in the mind of the... Court by which it is convinced that the existence of a fact is more probable than its non- existence” [GIHOC Refrigeration & Household Products Ltd. v. Hanna Assi [2005-2006] SCGLR 458]. Petitioner counsel submitted that Exhibit E series is not stamped and should be excluded as held in the case of Lizori Ltd. v. Boye & School of Domestic Science and Catering (2013-2014) 2 SCGLR 889 and Abusuapanin Kwame Konadu Yiadom v Yaw Acheampong and Lands Commission and Another [2021] DLHC 10851 where the Supreme Court held that documents that are not stamped with the appropriate duty paid should be excluded from evidence even if no objection is raised. The court notes that the Certificate of Proof in Exhibit E series has not been completed by the Registrar of Lands to confirm the date the indenture was executed. Furthermore, Exhibit 3, the building permit billing form, is dated 27 th June 2014, after the parties were married. The court finds the evidence of the petitioner on the acquisition of the land and her contribution towards its development more probable than the evidence adduced by the respondent. In the jurisprudence of equality principle, international human rights treaties and laws are applied to national and local domestic cases to prevent discrimination and violence against women and to equally apply laws to the determination of issues involving women in social, legal and economic affairs. Following this principle, the Supreme Court adopted a principle of equal distribution of marital property between the spouses in Mensah v. Mensah [2012] 1 SCGLR 391 which was affirmed in the case of Arthur (No. 2) v. Arthur (No. 2) [2013-2014] SCGLR 569. The court finds that the respondent contributed to the development of the property at Oyarifa by loaning or giving the respondent money to buy materials when he was short of money, fetching water and cooking for the respondent and his workers. She also worked as a trader and contributed to the maintenance of the home and their child, particularly when the respondent moved out of their matrimonial home in his family house. She is therefore entitled to one of the chamber and hall rooms on the property – and the respondent’s excuse that the rooms have been given out to his three older children with accommodation problems is untenable considering the petitioner’s right to the property under article 22 of the 1992 Constitution of Ghana. In section 19 of Act 367, a court may grant financial provision to a party in divorce proceedings. In Christina Quartson v. Pious Pope Quartson (Civil Appeal, No. J4/8/ 2012, st October 2012), the Supreme Court granted a wife who showed substantial contribution to the economic livelihood and assets of the parties, financial provision to cover her living expenses and build her own home as well as property settlement. The respondent testified that the petitioner is not entitled to a lump sum payment from him as she is a trader in gainful employment, and it is her conduct “…that has brought the marriage to this unfortunate situation”. Considering the respondent’s role in the troubles between the parties and the fact that he abandoned the petitioner without “seeing her off” via the proper customary procedure, the court finds it just to award the petitioner financial provision in a lump sum payment of GH¢5000.00 to be paid by the respondent. The court finds from the evidence tendered, that the customary marriage celebrated between the parties in 2010 at Enyan Denkyira in the Central Region has broken down beyond reconciliation under sections 2(1)(b)(f) and 41(3) and (4) of Act 367 and makes the following orders: 1. DISSOLUTION The marriage celebrated between the parties under Akan customary law in 2020 is dissolved under sections 2(1)(b)(f) and 41(3) and (4) of Act 367. 2. CUSTODY Custody of the child of the parties is granted the petitioner. 3. ACCESS The respondent is granted reasonable access to the child. 4. MAINTENANCE The respondent shall pay maintenance of GH¢400 for the child of the parties by the 3 each month, effective March 2020. rd of 5. EDUCATION (a) The petitioner shall pay for the child’s school uniforms and school supplies (b) The respondent shall pay for the rest of the child’s educational expenses 6. HEALTH (a) The parties shall register the child under the National Health Insurance Scheme (NHIS). 7. The parties shall pay the medical bills of the child not covered by the NHIS equally, within 24 hours of the bill being issued. 8. ACCOMMODATION (a) The respondent shall pay GH¢4200 towards the accommodation of the child and petitioner into court by October 10, 2022. (b) By October 1, 2023, the respondent shall pay 50% of the costs of accommodation of the petitioner and child until the child attains the age of majority or the petitioner re- marries, whichever comes first. 9. PROPERTY SETTLEMENT (a) The court grants the petitioner one of the chamber and hall buildings on the property at Oyarifa built during the subsistence of the marriage. (b) The respondent shall register the chamber and hall building claimed by the petitioner at Oyarifa in the petitioner’s name by November 30, 2022. 9. FINANCIAL PROVISION The petitioner is awarded financial provision in a lump sum of GH¢5,000. 10. COSTS No costs shall be awarded. Petitioner Respondent Counsel Eugene Addai Kyeremeh Esq. holding brief for Christopher Lartey Esq. Ntow Fianko Esq. (SGD) DORA G. A. INKUMSAH ESHUN CIRCUIT JUDGE 18