Owusu Vrs Owusu [2022] GHADC 81 (6 July 2022)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 6TH JULY, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE SUIT NO. A4/9/21 JOYCE OWUSU PETITIONER VRS FRANK OWUSU 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 eighteen (18) years at Kwapong, after the marriage they lived at Kwapong. There are four (4) children in the marriage: Namely: (1) Bright Owusu --- 16 years (2) Samuel Owusu --- 13 years (3) Grace Owusu --- 7 years (4) Sandra Owusu --- 6 years On the 17th December, 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 Customary marriage between the parties (2) An order for Custody of the four (4) children in the marriage (3) An order for the Respondent to pay GHc20,000.00 as a push package for the 18 years of marriage (4) Petitioner seeks for half share of that entire 3 bedroom house with its adjoining vacant plot in from the house at Kwapong. (5) Petitioner seeks half share of cocoa farm at ‘Peusew’ on Kwapong stool land bounded by Methodist Church farm and Peisew forest reserve. (6) Petitioner seeks half share of cocoa farm at Kwadwofoo Behu on Kwapong stool land bounded by Auntie Yaa Agyeiwaa and Auntie Ameine (7) Petitioner seeks half share of Metal Container also at Kwapong (8) Recovery of GHc4,000.00 in respect of money Respondent sought from Petitioner but has refused payment. The Respondent filed an answer and prayed for the following orders and reliefs: (a) Respondent prays that the marriage between the two be dissolved. (b) Recovery of 14 Turkeys which are in the custody of the petitioner (c) Respondent seeks to recover GHc10,000.00 being cost of labour when Petitioner engaged Respondents to work as a labourer for her chop bar business (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’S CASE The parties got married customarily about eighteen years ago with four issues in the marriage and stayed together happily as husband and wife at Kwapong in Ahafo Region. It was the case of the Petitioner that the Respondent fell sick and was hospitalized and the family deserted him and she managed to carter for the husband until he recovered. According to the Petitioner the Respondent’s sister and the entire family accused her of being a witch and therefore told the Respondent to terminate the marriage else she the Petitioner would kill him for the property that they have acquired in the marriage. She contended that when the Respondent’s family accused her of being a witch then told the Respondent to cause a divorce and this made the Respondent approached the Petitioner’s family for the divorce and they gave the Respondent seven months period to think about it to reconsider his decision but after the seven months period the Respondent came back with the same story of divorce and told the Petitioner’s family that he is no more interested in the marriage but refused to tender in drinks to cause the divorce but the Respondent was rather expecting the Petitioner to send his drinks to him and she also refused same and rather took a court action to that effect. The Petitioner contended that during the subsistence of their marriage she helped the Respondent to put up three (3) bedroom house with adjoining land and the cocoa farm situate at Peusew on Kwapong stool land. She contended further that she rendered services like cooking for the workers, clearing of the land for the building and harvesting the cocoa proceeds to enable them make money for the building. Petitioner again argued that she and the Respondent purchased a cocoa farm situate at Kwadwofoo Behu at a cost of GHc6,000.00 they have cultivated cocoa on it together but the Respondent is claiming adversely that the farm belongs to his mother. According to the Petitioner they have reared seven (7) sheep that the Respondent has taken them to his friend to rare for him. She contended that the Respondent took a loan of GHc4,000.00 from her to buy cocoa beans and promised to pay her but have refused. She also prayed for push off package for the number of years she has toiled and helped the Respondent in the marriage. She contended that the court should order the caretaker at Peusew cocoa farm to always dry the cocoa in the petitioner’s house for her to witness its drying and sale accordingly. EVIDENCE BY PW1 PW1 corroborated the Petitioner’s assertion that the Respondent rather came to the father (PW1) to cause the divorce upon persistent appeal from the Petitioner’s family for the Respondent to reconsider his decision but because the Respondent has been brainwashed that the Petitioner is a witch hence his refusal to continue the marriage. According to PW1 the Respondent who expressed the desire to cause the divorce also failed to send drinks to the Petitioner’s family for the divorce to be effected and he was rather expecting the Petitioner to send the divorce drink and she also refused same and took the court action. Petitioner just closed her case. THE RESPONDENT’S CASE It is the Respondent case that their marriage was very peaceful until the Petitioner started to accused the Respondent of telling her to stop the chop bar business because it was not helping their children’s studies and it has become an impediment.. According to the Respondent the Petitioner continued to insult him because he has stopped the chop bar business because of the influence of his close neighbor and that has exacerbated frequent insult from the Petitioner on the Respondent and his friend all the time. He stated that the Petitioner’s persistent insults and innuendo words to wit: “foolish man” “you are the most useless foolish man in the whole community”. He testified that this made him lost interest in the marriage and gave his consent of the dissolution of the marriage. He further said that because of the Petitioner’s insulting behavior she deserted the matrimonial bed and told the Respondent to go and sleep with his friend’s wife. According to the Respondent they have reared fourteen turkeys and the Petitioner has sold all of them.. DW1 told the court that the Respondent sent her to the Petitioner to give her an amount of money as the Petitioner’s share of the cocoa proceeds. The Respondent closed his case. 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 or the Respondent are entitled to the custody of the four (4) children in the marriage c. Whether or not the Petitioner has a share in all the properties acquired during the subsistence of the marriage. d. Whether or not the Petitioner 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 refund of GHc4,000.00 as a loan to the Respondent during the marriage 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 non existence 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…” SOME EXTRACTS FROM THE CROSS-EXAMINATION BY THE PARTIES Q. I am putting it to you that the cocoa farm situate at Kwadwofoo Behu is a family property? A. It is never true because we used our sweat to purchase that cocoa farm and you told me that your mother is selling her cocoa farm and you will never sit aloof for someone else’s to buy so you used that our money through our sweat of GHc6,000.00 to purchase that farm from your mother. Q. If you say I owed you GHc4,000.00. Tell me how I owed you? A. You were keeping the church money and you gave the money out to the cocoa farmers and when the time was due for the church to collect same you were not having money because the farmers have not paid back the money you gave to them and I ending up giving you that loan of GHc4,000.00 and I even took bank loan to top up to make GHc4,000.00 before you were able to pay the church money back to the church. From the above cross examination it has been revealed that the parties through their own sweat bought and acquired the Kwadwofoo Behu cocoa farm from the Respondent’s mother. It is also clear that the Respondent took GHc4,000.00 from the Petitioner to settle his debt owed to his church. 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 the Respondent because he has been brainwashed by his family that the Petitioner is a witch refused to allow the Respondent to continue the marriage and yet the Respondent family failed to tender in the divorce drink. She adduced further that the behavior of the Respondent and his family has made her lost happiness in the marriage. On the other hand, the Petitioner sees the marriage being threatened because the Respondent has joined his family and allowed them to interfere in the marriage and therefore see no enjoyment in the marriage because of the properties they have acquired in the marriage and the family are pointing fingers at her that she is a witch and wanted to kill the Respondent to claim all the properties in the marriage. It also shows that the marital properties were acquired by the parties during the subsistence of the marriage through the parties own dint of hard work. And this was corroborated by the Respondent and he has agreed for the sharing of the properties in the marriage equally as per the current legal provision. According to the Petitioner she contributed greatly to the acquisition of the properties. In her evidence she stated that she cleared the land for the building project to commence and cooked for the workers and fetch water for the project till the building was completed as a house. It is my finding that the Respondent could not lead sufficient evidence to tip the scale in his favour concerning the cocoa farm situate at Kwadwofoo Behu. This is indicated in the cross-examination below: Q. I am putting it to you that the cocoa farm situate at Kwadwofoo Behu is a family property? A. It is never true because we used our sweat to purchase that cocoa farm and you told me that your mother is selling her cocoa farm and you will never sit aloof for someone else’s to buy so you used that our money through our sweat of GHc6,000.00 to purchase that farm from your mother. The evidence on record shows that the Petitioner and the Respondent have not lived together as husband and wife since 2020 when Respondent conduct changed and stopped helping the Petitioner in her chop bar business and also the Respondent deserted the marriage due to the influence of his mother and sister who always sees the Petitioner as an obstacle in the Respondent life. Consequently the Respondent also argued that the Petitioner deserted the matrimonial bed when he told the Petitioner that the chop bar business is retiring their children’s education and this angered the Petitioner so much that she refused the Respondent sex and rather told him to go and have sex with his friend’s wife who has been advising him to stop the chop bar business which to the Petitioner is a very locative business. Going by this the parties have not had sexual intercourse for almost two years now. As I have stated above, the Respondent has also given his consent to the dissolution of the marriage and that he 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 customary marriage filed on 17th December, 2020. In determining whether to grant custody of the children in the marriage 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.” Article 16 of Universal Declaration of Human Rights states:- “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to form a family; they are entitled to equal rights as to marriage, during marriage and at its dissolution”. The current position of the law regarding joint property is that substantial contribution by a spouse to the acquisition of property during the subsistence of the marriage would entitle that spouse to an interest in the property. The new position in the law is that whenever a woman assisted a man during the lifetime of the man and they acquire properties the woman is entitled to 50% share of the property acquired during the subsisting of the marriage. “The principle of ‘equality is equity’ is the preferred principle to be applied in the sharing of joint property, unless in the circumstances of a particular case the equity of the case will demand otherwise”. The decision in MENSAH AND MENSAH AND BOAFOUR V. BOAFOUR enjoins constitutional backing from Article 22(3)(a) and (b) state thus: (a) Spouses shall have equal access to property jointly acquired during marriage. (b) Asserts which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Is evident that the framers of the 1992 Constitution intended that there should be no discrimination (particularly against women in the sharing of joint property). The following was stated in International Conventions and Principle of Jurisprudence of Equality (JEP): “I believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.” This is so because, it can safely be argued that, the acquisitions of the properties were facilitated by the massive assistance that the other spouse derived from the other. As enunciated in the decisions such as Mensah V Mensah and Boafo v Boafo as referred to and the International Conventions and Principle of Jurisprudence of Equality (JEP) this court is of the considered view that the Petitioner contribution even as a housewife, in maintaining the house and creating a congenial atmosphere for the Respondent to create the economic empire he has built are enough to earn for her an equal share in the marital properties on offer for distribution upon the decree of divorce. In the circumstances, I make the following orders: a) The Petitioner is given custody of the four (4) children of the marriage (Bright Owusu - 18 years, Samuel Owusu - 14 years, Grace Owusu - 9 years, Sandra Owusu - 7 years) 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 Respondent would continue to pay the school fees and medical bills of the four (4) children in the marriage. Both parties are to provide other educational needs and other necessaries of life for the children. c) The Respondent is to maintain the four (4) children at GHc1,000.00 per month pay to court. d) The Respondent is to pay a lump sum of GHc15,000.00 as a push off package for the Petitioner as she provided and performs various household chores during the subsistence of the eighteen (18) years of marriage. e) The Respondent is to pay GHc4, 000.00 being the loan Petitioner gave to him. f) Three (3) bedroom houses with adjoining land, the Petitioner is to take 1 bed room and an equal half share of the adjoining land g) ) The cocoa farm at Peisew on Kwapong stool land bounded by Methodist Church farm be divided amongst the parties equally h) The cocoa farm at Kwadwofoo Behu on Kwapong stool land bounded by Aunti Yaa Agyeiwaa and Auntie Ameine be divided equally amongst the parties i) The Metal Container be divided equally between the parties j) Five (5) Turkey birds for the Petitioner and Nine (9) Turkeys birds for the Respondent k) Three (3) sheep for the Petitioner and four (4) sheep for the Respondent …………………………………….. HW MAGDALENE THOMPSON DISTRICT MAGISTRATE