Mercy Holomah Vrs Frederick Nyamekye [2022] GHACC 267 (16 December 2022)

IN THE CIRCUIT COURT 3 OF GHANA HELD IN ACCRA ON FRIDAY THE 16TH DAY OF DECEMBER, 2022 A. D. BEFORE HER HONOUR SUSANA EDUFUL (MRS.) CIRCUIT COURT JUDGE SUIT NO. C5/301/20 MERCY HOLOMAH PETITIONER VS. FREDERICK NYAMEKYE RESPONDENT PARTIES PRESENT AND REPRESENTED JUDGMENT The parties to this suit have lived together as husband and wife since 1996 in Accra. There are three issues in this marriage namely Nana Yaa Brimpomaa Nyamekye aged 22 years, Kwame Nyamekye aged 16 years and Gabrielle Serwaa Nyamekye aged 9 years. The Petitioner is seeking 1. The dissolution of the marriage 2. An order granting full custody of the 2nd and 3rd issues of the marriage with reasonable access to the Respondent 3. An order for 50 percent of the matrimonial property at Odorkor and the commercial complex at Odorkor. 4. An order granting financial settlement of GH₵100,000 Ghana Cedis 5. In order against the Respondent for GH₵1,000 Ghana Cedis to be paid as monthly maintenance for the upkeep of the children. 6. That the Respondent be made to bear the Petitioner’s legal costs. The Respondent also cross-petitioned for the following reliefs: a) That there was no existing customary marriage to be dissolved since the Petitioner was living with another partner in adultery. b) That custody of the children be granted to him since Petitioner could not take care of the children. c) That there was no matrimonial property to be shared by the couple. d) That the Petitioner is not entitled to financial settlement of GH₵ 100,000 because the Respondent cannot pay same. e) That the Petitioner is not entitled to costs. ISSUES The main issues for determination are as follow: 1. Whether or not there was a marriage existing between the Petitioner, MERCY HOLOMAH and the Respondent, FREDERICK NYAMEKYE? 2. Whether or not the marriage has broken down beyond reconciliation? 3. Whether or not the Petitioner is entitled to custody of the issues of the marriage? 4. Whether or not the Respondent is entitled to custody of the issues of the marriage as indicated in the cross-petition? 5. Whether or not the Petitioner is entitled to 50% of all the properties listed as matrimonial property namely: a) A three-bedroom storey mixed use property located at Odorkor b) A commercial complex located at Odorkor. 6. Whether or not the Respondent should make a lump sum payment of GH₵100,000.00 Ghana Cedis to the Petitioner? 7. Whether or not the Respondent should pay a monthly maintenance sum of GH₵1,000.00 Ghana Cedis to the Petitioner? The Summary of the Parties Case on their Marriage The Petitioner is Mercy Holomah and in her evidence-in-chief she stated she is a seamstress and her husband is the Respondent a contractor and businessman. She got married to the Respondent in 1996 under customary law. The parties prior to their separation resided at South Odorkor which is a jointly acquired matrimonial home. The Respondent sacked the Petitioner from their matrimonial home for which reason she moved into her father’s house with the youngest of the 3 issues of the marriage. The Petitioner avers that the Respondent in May 2019, locked up her shop from which she operated the dressmaking business because Petitioner had complained about the Respondent’s ‚senseless jealousy and controlling behaviour‛ and abusiveness which had become excessive. That the Respondent had moved out of the bedroom the couple shared nine years ago and had not had sex with the Petitioner 2 years prior to sacking her from the home. The Respondent refused to eat meals cooked by the Petitioner when she complained about the dismal treatment he meted out to her. It is the Petitioner’s statement that the Respondent did make sexual advancements and have sexual relations with three of the members of the household and the Petitioner had once caught the Respondents undressing one of the twin girls he adopted. When confronted by the Petitioner, Respondent replied that he wanted to make the Petitioner jealous. Respondent had sexual relations and a romantic relationship with Victoria Kyei Baffour and sexual relations with a minor known as Asana whose brother was the Respondent’s tenant. It is the Petitioner’s contention that the Respondent during their marital journey held himself out to be the sole authority on all matters and sole owner of all family assets. Respondent made regular utterances such as ‚this is a man’s home‛ and did not value Petitioner’s input nor accept any advice from Petitioner concerning the family. The Respondent forcibly seized the Petitioner’s phone in a jealous rage because he was suspicious and felt that the Petitioner was talking to a person he thought was her boyfriend but who turned out to be Petitioner’s sister, Tollo Holomah. The Petitioner also states that the Respondent refused to give her a white wedding because according to the Respondent the Petitioner would kill him and take all his properties. That the Respondent falsely accused the Petitioner of sleeping with their family friend, Mr. Oppong whom the Respondent had invited over with Mrs. Dora Oppong on several occasions to dine with them. The Petitioner’s father, Mr. Ofoe Holomah had made two separate attempts to have the misunderstanding between the couple resolved but that the Respondent failed to be present on both occasions. The Petitioner further claimed that when she attempted to visit the children and also pick up personal effects after the Respondent had sacked her, Respondent physically assaulted and insulted her and forced her out of the house. The Respondent sought per the evidence in chief of the Petitioner to punish the Petitioner by denying her access to her shop which resulted in loss of economic opportunities as well as disrepute because she was unable to provide her customers with their clothes. The respondent’s sexually perverted ways have prevented the Petitioner from enjoying the marriage and his infidelity, lack of truthfulness and domineering character makes it difficult for the Petitioner to stay with him. The Petitioner contends that living with the Respondent in the manner described in the preceding paragraphs had led to her developing a condition known as chronic migraine or cephalagia. The Respondent, Frederick Nyamekye indicated to the court that he is also known as Frederick Issah Yakubu and lives at House No. B233/19, Busia Road, Adjacent St Anthony’s School, Odorkor, Acccra. The petitioner is his wife and that they live together as a couple after he had presented drinks to the Petitioner’s father as ‚knocking‛ in 1996. He also stated that they cohabited at Jimaco house, Busia Junction, Odorkor after ‚the knocking‛ before they moved to his present address. It is the Respondent’s contention that the Petitioner left their matrimonial home on the flimsy reason that the respondent had not finished paying her bride price so she considered herself not to be his wife. The Respondent further claims that it was the Petitioner’s mother who mediated in the couple’s disputes until her death in 2015. The respondent further states that in November 2017, during the funeral of the Petitioner’s aunt in Tegbi in the Volta Region, the Petitioner left the Respondent and her father at a shrine house and denied them entry into the house where they were receiving visitors. The Respondent therefore informed the Petitioner’s father of his intentions to leave the village because of his safety and they all returned to Accra. It is the Respondent’s contention that the Petitioner has enrolled in the Accra Technical University without his knowledge. The Respondent further states that on 7th June, 2017, he reported the Petitioner to her family that she had received money from her boyfriend, Harry Zavor alias brother who she said, met her at the Tegbi funeral and that the Petitioner confessed and told the Respondent to his face that after all she was not his wife since he had only paid a knocking fee to her father. The Respondent further states that because of the adultery the Petitioner is committing, she has snubbed all respected elders, friends and even her own father who have advised her to change for the better. The Respondent also states that, the Petitioner’s father returned the Respondents knocking drink but the Respondent told him to keep it to witness the end of the relationship between the couple. The Respondent says that, the Petitioner apart from flirting with Harry Zavor, who pays her fees, is also flirting with another man, Mr Francis Oppong who she cooks lunch for everyday and goes out with him after lunch. The Respondent denies the Petitioners assertion that he is domineering and does not listen to her. The respondent states that he has always respected the Petitioner but for her unrepentant adultery. The Respondent also states that attempts by their church elder to reconcile the couple have failed after almost 3 months of effort because the Petitioner failed to honour their invitation and also told her father not to provide the engagement list since she no longer loved the respondent. The Respondent also states that the Petitioner used to receive late night calls from her adulterous partner, Mr Zavor for which reason he seized her cell phone. The late-night calls caused the Respondent to leave their bedroom to go and sleep in the visitor’s room because he could not contain that behaviour. The respondent also denies the assertion of the Petitioner that he had sexual relations with Victoria Kyei Baffour because Victoria is a cousin of the twin girls they adopted. The respondent also says that, the petitioner after leaving the house, went to Dubai to visit her boyfriend, Mr Harry Zavor. During that time, the Petitioner operated her shop from her father’s house and Mr Francis Oppong, her boyfriend in Ghana was bringing her to the shop in the morning and taking her back in the evening. This therefore made the Respondent lock the shop and give it back the owners, Messrs Fressaku Ltd which later rented it out. The Respondent further states that the petitioner informed the Legal Aid Commission when the couple appeared before it that, she no longer wants the marriage and that she voluntarily left the matrimonial home because she has no interest in the marriage. The respondent says that presently, there is no existing relationship between the couple for same to be dissolved since the Petitioner as a result of her adultery left the marriage and has gone to stay with her new boyfriend. Issues 1 and 2 Whether or not a marriage union exists between the Petitioner, MERCY HOLOMAH and the Respondent, FREDERICK NYAMEKYE since 1996 and whether or not the said marriage if so existed has broken down beyond reconciliation? The Respondent has contended that no customary marriage between the parties which must be dissolved. If this contention is true, then there will be no need to determine whether any of the ground in section 2(1) of the Matrimonial Causes Act exist to establish that marriage has broken down beyond reconciliation. It is the statement of the Respondent that he only performed the knocking ceremony and did not perform a customary marriage. He added the engagement list to the exhibits of his witness statement (Exhibit 1) in support of the assertion that he made an attempt as it were to ‚complete‛ the marriage between himself and the Petitioner when the Petitioner left their matrimonial home because the Respondent had not married her however the Petitioner was no longer interested in marrying him. Does the knocking ceremony qualify as a marriage ceremony? Section 31 of the Evidence Act, 1976 (Act 323) is to the effect that a valid marriage is one which has been celebrated before witnesses. A knocking ceremony is where a man’s family takes drinks to a woman’s family to request her hand in marriage. Acceptance of the drinks by the woman’s family signifies their acceptance of the man as a husband to their daughter. Since there was no customary marriage celebrated between the parties, a marriage cannot be said to exist because there has been no ceremony in the presence of witnesses, however in the textbook: At a Glance! Contemporary Principles of Family Law in Ghana, the author explains the concept and types of informal marriages in pages 33-41. In the case of Quaye v. Kuevi [1934] D. Ct.[31-37]69 which was decided as far back as 1934, the man sent drinks to acknowledge responsibility for the girl’s pregnancy. Thereafter the two lived together as husband and wife even though the no drinks had been presented to the woman’s family by the man’s family asking for the woman’s hand in marriage. Dean J, the Chief Justice at the time, held that there was a valid customary marriage subsisting between the man and the woman. He stated as follows: When once it has been proved therefore by proper evidence that the parties have agreed together in the sight of the world to live together as man and wife that of itself is sufficient: the court should hold that the parties are married according to native custom. In Yaotey v. Quaye Justice Ollenu held that there was an informal marriage because the evidence showed that the family of Yaotey had acknowledged the defendant as Yaotey’s wife even though no drinks had changed hands. In R. S. Ashanti Law and Constitution 1969, p.30 Rattray makes an observation that out of the six different forms of marriage that he identified in Ashanti, the most prevalent and common was ‚mpena awadee‛ meaning literally, ‚meaning of lovers‛. He further explains that these marriages were valid even though no drinks had changed hands. The Court of Appeal in the case of Gorleku v. Pobee and Another [2012] decided that there was a valid customary law marriage (informal) even though no marriage ceremony had taken place between the deceased and the widow. The facts of this case are that the widow (respondent) who claimed to be the lawfully wedded wife of the deceased instituted an action against two of the children (appellants) of the deceased for fraudulently applying for and obtaining letters of administration to administer the estate of the deceased without her notice and consent as the surviving spouse. The appellants argued that the respondent was never married to their father and that she cohabited with their father in the same house in the eyes of the public as husband and wife, but no customary rites were performed to formalize the relationship between them to qualify them to be husband and wife. The court stated as follows: ‚There are two forms of marriage, one involves the presentation of drinks and the other is devoid of formalities like the presentation of drinks. In the case of the first, which is the ordinary case, the presentation of drinks and other items by the man’s family to the woman’s family and their acceptance by the woman’s family constitutes the express consent of both families to the marriage. The second case involves the existence of a valid customary law marriage between a man and a woman without the express consent of the families manifested by the presentation and acceptance of drinks and other presents. The agreement between a man and a woman to live as husband and wife is essential in establishing a formal marriage. In establishing that an informal marriage existed, evidence must also be led to show that there was cohabitation for a considerable length of time coupled with having children together, acquiring joint property, attending functions together and performing customary rites in each other’s family will lead a court to conclude that there was an informal marriage. In paragraphs 3 and 4 of the witness statement of the Respondent, he described the Petitioner as his wife and further added that he lived together with the Petitioner as a couple after he had presented drinks to the Petitioner’s father as ‘knocking’ in 1995. The Petitioner in paragraph 3 of her witness statement described the Respondent as her husband. The 1st Respondent witness (DW1) in his witness statement also mentioned that the two parties to the current suit were married and had lived together as man and wife. All the witness statements of the persons afore-mentioned have indicated that there was a marriage subsisting between the parties and I find as a fact that the parties were informally married taking into consideration the law and the evidence presented in the various witness statements. Having found that there was an informal marriage existing between the parties to this suit, I will now proceed to determine the issues next issue. Section 1(2) of the Matrimonial Cause Act, 1971 (Act 367) provides the sole ground on which a petition of divorce shall be granted. This sole ground is that the marriage has broken down beyond reconciliation. Section 2(1) of the Matrimonial Causes Act 1971, (Act 367) gives the criteria which must be established for the Court to be satisfied that the marriage has broken down beyond reconciliation as follows: a. That the Respondent has committed adultery and by the reason of such adultery the Petitioner finds it intolerable to live with the Respondent; or b. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; or c. That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or d. That the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent consents to the grant of a decree of divorce: provided such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a Petition for divorce under this paragraph notwithstanding the refusal; or e. That the Parties to the marriage have not live as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; f. That the parties have after diligent effort been unable to reconcile their differences. Section 2(3) of Act 367 also provides that ‚although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition of divorce unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. This implies that the ability of a party to establish one or more of the criteria envisaged in Section 2(1) of Act 367 does not lead to an automatic grant of a petition of divorce. The Court must be satisfied that the establishment of the criteria has led to the breakdown of the marriage and the parties cannot be reconciled. It is said that he who alleges must prove therefore the onus is on the Petitioner to prove all the averments made in her petition. The Respondent having cross-petitioned and the cross-petition being in the nature of a petition by itself is also bound to prove all the averments contained in the cross-petition. Sections 10 and 14 of the Evidence Act, 1975(NRCD 323) provide that the burden placed on the Petitioner can only be discharged where sufficient evidence is led to enable a finding of fact to be made in the Petitioner’s favour. This same burden is placed on the Respondent in respect of the cross-petition. Majolagbe v Larbi (1959) GLR190. No party can rely on the weakness of their opponent’s case to prove their own case. The Petitioner has prayed that the marriage is broken down beyond reconciliation. The respondent does not dispute this. From the evidence adduced by both parties, it is clear that attempts by family members to reconcile the parties have failed. The parties have alleged that each party has committed adultery. The standard for proving adultery has been set down in the case of Quartey v. Quartey (1972) 1 GLR 6 which is proof beyond reasonable doubt that is the adultery must be proved as though it were a criminal offence. On cross-examination, the Petitioner denied that she had gone to live with Mr. Harry Zavor in Dubai. She stated that Harry Zavor did not reside in Dubai. Petitioner however called PW1 to testify that she has been a victim of the Respondents advance towards her sexually. This was denied by the Respondent. The evidence adduced does not establish that there was any sexual intercourse between PW1 and the Respondent. All other allegations proffered by the Petitioner on adultery on the part of the Respondent remains unsubstantiated. Consequently, the court cannot establish adultery on the part of either party as both were unable to prove adultery beyond reasonable doubt. I do not see from the evidence available that any one party has led sufficient evidence that adultery has been committed by the other party. I find from the petitioner’s evidence that there are differences between the parties which have led to the breakdown of the marriage. The parties have not been able to explain their behaviour or communicated well to each other how they have conducted their lives and this has resulted in the difference with the parties have not been able to resolve. Generally, the courts are reluctant to disturb the sanctity of marriage. However, there are situations where the courts will disrupt the sanctity of a marriage to grant a divorce. Looking at the evidence adduced before this court by the parties, I am of the view that the parties should not be compelled to stay in the relationship (see unreported case of Bernafo v. Nico Annan Suit No. DMC714/2001.) The marriage celebrated between the petitioner, Mercy Holomah and Frederick Nyamekye in 1996 has broken down beyond reconciliation and is therefore dissolved. Issues 2 Whether or not the Petitioner or the Respondent is entitled to custody of the children? Both parties is praying the court to grant custody of the children of the marriage to them with reasonable access to either party and that the Respondent should be made responsible for the maintenance of the issues of the marriage. Section 2(1) of the Children’s Act, 1998 Act 560 is to the effect that the best interest of the child shall be paramount in any matter concerning a child. In Attu v. Attu (1984-86) GLR 745, Brobbey J held that ‚in divorce proceedings, where the custody of the child is concerned, the welfare of the child is of paramount consideration. See also Wiredu J. in Daaboa Dagarti v. Dornipea 1982-83 GLR 85. Section 2(2) of the Children’s Act, 1998 Act 560 states that, ‚the best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.‛ Under section 45(1) of the Children’s Act, 1998, Act 560 states that ‚a family tribunal shall consider the best interest of the child and the importance of a young child being with the mother when making an order for custody or access.‛ Under section 45(2d) of Act 560, the family tribunal shall take into consideration the fact that it is desirable to keep siblings together. In Attu v Attu supra, the court held that ‚children should not be separated from each other and the fact of and advantage of brotherhood and sisterhood should remain.‛ The first daughter Nana Yaa Brimpomaa Nyamekye being 22 years of age has reached the age of majority, she can therefore decide which parent to live with. The two other children Kwame Nyamekye and Gabrielle Serwaa Nyamekye however are still minors. This court is of the opinion that they remain with the Petitioner with reasonable access to the Respondent. The Respondent is to maintain the children including the payment of their school fees and all other incidental expenses associated with their education as well as medical bills. Issue 4 Whether or not the Petitioner is entitled to 50% of the matrimonial property Odorkor and the commercial complex located at Odorkor. The Petitioner told the court that after the parties married under customary law they cohabited at Jomaco House in Accra for about 10 years before they moved to their jointly acquired property at South Odorkor, which is a storey building with three bedrooms on the first floor and four shops on the ground floor which the Petitioner used one for a dressmaking business and the remaining 3 were rented out to tenants. The Petitioner also prayed that the commercial complex comprising of 13 shops and 6 apartment which was acquired by the Respondent is a marital property therefor she is a joint owner of the property. The reasons given by the Petitioner to prove that she is a joint owner of these two properties are that: she used strength and resources from the business of dressmaking to manage a household of member which fluctuated between 7 and 14. It was her responsibility to almost wholly provide food, clothing and undertook washing of the clothes of the family without a washing machine. Petitioner also supported the Respondent when he was saddled with a lot of land cases at the court and she stood by him through thick and thin. As she used her resources to cater for the home the Respondent also used his resources to acquire landed property which she believed was a joint venture. According to the Petitioner she served as witness to the Respondent for all agreement relating to the acquisition of the landed properties with the knowledge that the properties are their joint properties. The respondent in response has indicated in evidence that the Petitioner did not support him to acquire their matrimonial home situate at Odorkor and also the Commercial Complex comprising of 13 shops and 6 apartment at Odorkor and the piece of land measuring 0.10 acre. According to the Respondent he is one of the directors of the company Fressaku Ltd. and a company registered under the companies’ code. The business of this registered company builds stores and estate houses on build operated and transfer basis. Accordingly, Fresako Ltd. entered into an agreement with the land owner Mr. Emmanual Nii Okai Tetteh and Mr. Frederick Issah Yakubu for the release of their piece of land at Odorkor, for the company to build stores and apartments on the pieces of land at Odorkor marked as exhibit 7 series. Per the agreement the company Fresaku Ltd would build the said stores and bedrooms operate same and after the completion operate up till 2023 and 2030 respectively. Respondent further stated that the 3 bedrooms flats and four stores which the company built on the plot of Mr. Frederick Issah Yakubu at Odorkor are not for the Respondent but for Fresaku Company Ltd until 2031 when the company will hand it over to Frederick Issah Yakubo. Fessaku Ltd has two shops with apartments on top built on 20x24 feet piece of land from an agreement between him and Mr. Emmanuel Nii Okai Article 22(3)(a) and (b) of the 1992 Constitution provides as follows: a) b) Spouses shall have equal access to property jointly acquired during marriage. Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon the dissolution of the marriage. Having found that the parties were duly married I will consider, whether any property was acquired during the subsistence of the marriage and whether such property is joint property. Section 20 of the Matrimonial Causes Act, 1971 (Act 367) stipulates 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 as part of financial provision that the court thinks just and equitable.‛ There is extensive case law that governs the distribution of property jointly acquired during the subsistence of the marriage. Dotse JSC in Mensah v. Mensah (2012) 1 SCGLR 391 held that “we believe that common sense , 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 the 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.” Date-Bah JSC in Arthur v. Arthur (2013-2014) 1SCGLR 543 said as follows “it should be emphasized that in light of the ratio decidendi in Mensah v Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage.” The case of Quartson v. Quartson (2012) SCGLR 1077 enjoins the Court to bear in mind that each case is different and is to be considered in light of its own peculiarities. It must be noted that the Respondent has alleged that all the properties referred to by the Petitioner as marital property is rather property that belongs to a company owned by him known as Fressaku Limited which was incorporated in 1996, the year in which they were married. He tendered into evidence Exhibit 5 which is the company’s certificate to commence business. The case of Salomon v. Salomon 1897 AC 22 has established that a company duly incorporated is one which has a separate legal identity from its owners. In essence, a company is a person on its own with its rights and liabilities independent of its owner(s). The case of Morkor V. Kuma (East Coast Fisheries case) [1999- 2000] 1 GLR 721 provides useful guidelines on companies entering into transactions. The Supreme Court held thus: ‚Save as otherwise restricted by its regulations, a company, after its registration, has all the powers of a natural person of full capacity to pursue its authorised business. In this capacity, a company is a corporate being, which, within the bounds of the Companies Code, 1961 (Act 179) and the regulations of the company, may do everything that a natural person might do. In its own name, it can sue and be sued and it can owe and be owed legal liabilities. A company is, thus, a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords clarified this cardinal principle, more than a century ago, in the celebrated case of Salomon v Salomon & Co. [1897] AC 22, HL it has, subject to certain exceptions, remained the same in all common law countries and is the foundation on which our Companies Act is grounded. The corporate barrier between a company and the persons who constitute or run it may be breached only under certain circumstances. These circumstances may be generally characterized as those situations where, in the light of the evidence, the dictates of justice, public policy or Companies itself so require. It is impossible to formulate an exhaustive list of the circumstances that would justify the lifting of the corporate veil. However, the authorities indicate that such circumstances include where it is shown that the company has been used or was established to further fraudulent activities or to avoid contractual liability. In Halsbury’s Laws of England (4th ed), Vol 7(1), at para 90, it is stated as follows: ‚Notwithstanding the effect of a company’s incorporation, in some cases the court will ‘pierce the corporate veil’ in order to enable it to do justice by treating a particular company, for the purpose of the litigation before it, as identical with the person or persons who control it. This will be done not only where there is fraud or improper conduct, but in all cases where the character of the company, or the nature of the persons who control it, is a relevant feature. In such cases the court will go behind the mere status of the company as a separate legal entity distinct from its shareholders, and will consider who are the persons, as shareholders or even as agents, directing and controlling the activities of the company. However, where this is not the position, even though an individual’s connection with a company may cause a transaction with that company to be subjected to strict scrutiny, the corporate veil will not be pierced. Thus, where it is apparent that a company has engaged in a transaction but uses its limited liability status as a shield to avoid contractual liability. The court finds from the evidence that two persons have acted for both companies at the same time. The Defendant has offer no explanation to this situation. The Court, after assessing the evidence would pierce the corporate veil. It is amazing that in about 23 years of this marital union considering the occupation of the respondent as a businessman and contractor, no property exists to be called marital property as the Respondent wants the court to believe. The matrimonial home which the couple resided in South Odorkor also happens to be owned by the company not because there is a lack of property but that the property happens to be in the name of the company. The petitioner has contended that the property which was put into evidence as Exhibit “A” series which serves as their matrimonial home is not the property of Fressaku Company Limited. The Respondent vehemently denies this. Exhibit 7 series put into evidence by the Respondent which is an agreement between the Lessor and Fressaku Company Limited. The lessor is described as the 1st party and the company as the 2nd party. Clause 5 is to the effect that the 2nd party is entitled to a 20X24 portion of the land to build stores or anything of his interest free from any charge. It is the property built on this portion that the Petitioner refers to as their matrimonial home and therefore marital property. This contention was made because it appears that the parties got the home with the intention to use it as their matrimonial home and marital property. The use as the home where the couple/ parties had lived for so many years with their entire family shows the intention 16 of the parties. According to the Petitioner she signed the agreement as a witness with the firm believe that it is the joint matrimonial property of the parties because both of them acquired with their toil. According to Petitioner she worked as a dress maker to cater for the whole family including the Respondent whilst the respondent worked to acquire the developments which are long term. The Respondent in claiming that the property belonged to the company did not proffer any evidence to show indeed that the company had an agreement with the parties as to payment of rent. Is the Respondent implying that the couple lived in the home on the benevolence of the company? The fact that the parties don’t pay rent to Fressaku Ltd to live in their matrimonial home shows that that one and the same as the parties/Respondent. The evidence given by both parties shows that the parties lived in the house under the impression that it is their matrimonial property. When the Petitioner was cross-examined by counsel for Respondent the following ensued; ‚Q. I am putting it to you that the property you have exhibited in your Witness Statement is not a matrimonial property acquired. A. It is our matrimonial property. A. I am also putting it to you that the said property situate at South Odorkor is a property put up by Messrs. Fressaku Company Ltd. of Accra and the land owner is Mr. Emmanuel Okai Tetteh of Teshie.he truth is that the property which is our matrimonial home was sold to us by Emmanuel Okai Tetteh as depicted by the Site Plan exhibit ‘B’. The residential property which is the six apartments exhibited as ‘C’, it was given to us by Mr. Tetteh as lease hold. But where we live with the four (4) shops out of which I am sewing in one is our property. Messrs. Fressaku Company Ltd. is the Respondent’s company. He has registered it as his businesses but it is not true, it’s for Messrs. Fressaku Co. Ltd. because the Respondent registered it and uses it for all his things. Q. I am also putting it to you that there is an agreement between Fressaku Co. Ltd. and the land owner Mr. Emmanuel Okai Tetteh same dated 19/3/2001. A. It is true that they have an agreement. It is for the land that was given lease to the Respondent to construct a building and use it to defray the construction. So that agreement he is talking about has my signature on it together with the Respondent that we took that lease hold. Q. I am putting it to you that in the said agreement there is a covenant that Messrs. Fressaku Co. Ltd. was to build stores and three bedroom apartments on Built, Operate and Transfer account (BOT Agreement) and hand over same to the owner on or before 1/1/2031. A. Yes, but that portion is not the part where we are living in. That three (3) bedrooms with my shop has been bought outright. So, I am aware that on 1/1/2031 the lease agreement will end for it to be handed over to Mr. Owusu. It is also on the agreement that he is not to handover all to Mr. Tetteh. Some will be left for us as owners. Q. On 10/9/2021, you told the court your exhibit ‘A’, the house at South Odorkor that the storey building which contains three (3) apartments on the first floor and four (4) shops on the ground floor is a matrimonial property, not so? A. Yes. Q. Look at exhibit ‘B’ (Site Plan) of the South Odorkor house and tell the court whose name is on exhibit ‘B’. A. Frederick Issah Yakubu. Q. Who is Frederick Issah Yakubu? A. Frederick Issah Yakubu is the same person as Frederick Nyamekye who is my husband and the Respondent herein. Q. Your exhibit ‘B’ on which exhibit ‘A’ stands, can you tell the court when the exhibit ‘A’ was acquired? A. I cannot remember the date but the time Mr. Tetteh leased the other part to him was the same time he sold it to the Respondent. Q. I am putting it to you that exhibit ‘B’ the land at South Odorkor in the sole name of Frederick Issah Yakubu was acquired on 19/8/2000. A. It is his name that was used to do all the property. I sewed to support the family and he buys the properties for the family. Also that every document he does, I am a Witness in all his documents because I am part of the ownership of the properties. It is my name that does not usually appear. Q. I am also putting it to you that Frederick Issah Yakubu acquired this land from his grantor Emmanuel Nii Okai Tetteh of Accra in his sole name. A. It is not true. Q. I am also putting it to you that you only witnessed in the Indenture for Frederick Issah Yakubu the Respondent as the leasee. A. I am saying that we do everything together even if he does it in his sole name my sweat and hard work is part. Q. You admit that on 19/3/2001, Mr. Frederick Issah Yakubu (Respondent) as the sole owner of this land at South Odorkor entered into agreement leasing this land to a company Messrs. Fressaku Construction Ltd. in Accra. A. It is not true. Q. I am putting it to you that you witnessed the agreement of Frederick transferring the land to Messrs. Fressaku. A. I cannot remember that. When the Respondent was cross-examined by counsel for the Petitioner the following ensured; Q. Frassaku Ltd. was given a certificate of commencement of business on 27/6/1996, not so? A. That is correct. Q. Did you inform the Petitioner that a company of such nature had been registered? A. Yes, I did and she is very aware. ‚In your paragraph 34 of your Witness Statement you have stated that Frederick Issah Yakubu acquired a piece of land 0.10 acres covered by exhibit ‘6’, ‘6A’, 6B’ and ‘8’, is that correct? A. Yes, it is one site plan. The other one is for Nii Tetteh. Q. Is the name Nii Okai Tetteh the same person as Mr. E. N. Okai Tetteh? A. Yes, that is so. Q. Which year did Frederick Issah Yakubu acquire the land as covered by exhibit ‘8’ from Nii Okai Tetteh? A. It was in the year 2000. Q. Where is the land currently situate? A. It is at Odorkor. Q. On or about the year 2000 you were living with the Petitioner, not so? A. That is so. Q. So you’ll agree with me that per exhibit ‘6’, ‘6A’ and ‘6B’ as covered by exhibit ‘8’, the land was sold to you outright by Mr. Emmanuel Tetteh, is that correct? A. That is a lease sold for ninety-nine (99) years. Q. You’ll agree with me that where exhibit ‘8’ is situate currently has three (3) bedroom apartments and four (4) shops on that land, is that correct? A. Yes, that is what Messrs. Fressaku Co. Ltd. acquired the land and built on it. Q. You will agree with me that out of the three (3) bedroom apartments which is situated on exhibit ‘8’ that you lived together with the Petitioner. A. Yes, because I was the Director of the said company. Q. I put it to you that your house on exhibit ‘8’ served as your matrimonial home with the Petitioner. A. We lived there as a matrimonial home but living there does not mean it belongs to you. Even though exhibit ‘8’ bears your name prior to the date of agreement per exhibit ‘6’, ‘6A and ‘6B’ bearing the date 19/8/2000. Since the property was acquired during the subsistence of the marriage, it is a matrimonial property since the two (2) of you cohabited in it. A. It will be our joint property when the company will hand over the property to us. Since Petitioner could not wait for the company to hand over the said property to us, the property does not belong to me, it is for the company. Q. In your paragraph 39 of your Witness Statement you have stated among others that there has been transfers from Frederick Issah Yakubu to Messrs. Fressaku Co. Ltd. A. It was an agreement he will build on the said land and rent it out until he recoups his money before he would hand over the property. Q. You will concede that per exhibit ‘11’ and ‘11A’ that is the agreement between Messrs. Fressaku Co. Ltd. you purported to release the said land to Messrs. Fressaku Co. Ltd. without recourse to the Petitioner. A. Everything I do I do it in my name and Petitioner signs as a Witness so she knows about it. Q. I put it to you that on exhibit ‘8’ the land was acquired during the subsistence of your marriage and you could not have entered into an agreement solely with Messrs. Fressaku Co. Ltd. A. I can sign the agreement solely because the name used to acquire the land is solely in my name. Petitioner also worked and used the profit she got she spent it on herself. . It is your interest in the marital property alone but you could have given out to Messrs. Fressaku Ltd. in terms of an agreement. That is not so. When we lived together everybody does his or her own thing in their own name. So when I buy something in my name, bought it for myself, my wife and my children. She has always been a Witness in all the contract I make. The time she left the house she came for the fridge we used in the house and got out our items (foods) on the dining table. She took the fridge away saying that the fridge belongs to her. Her money, I helped her to open account and keep in it she dissipated it at her own will. Q. You will concede that the tendency you have just given to the fact that everybody acquires his own property it is not part of the facts you have put before this court and your earlier testimony to this. A. Out of the question you asked, I have also told the court she came for the fridge from the house. Q. I put it to you that your answer suggest that it is only your interest in the matrimonial property that you could have given out. A. What I do I discuss it with her so she even signs as a Witness. Q. The land which you bought from Mr. Emmanuel Tetteh that is exhibit ‘6’, ‘6A’ and ‘6B’ was a virgin land, not so? A. It’s a land which was developed by Emmanuel Tetteh on one part and I made him sell part of the land to me. Q. The land that was sold to you by Mr. Emmanuel Tetteh, was it developed or a virgin land? A. The land given to me was not developed. Q. On exhibit ‘10’, Mr. Emmanuel Tetteh had an uncompleted house to lentil level on the land. A. That is so. The land is so big that is why he sold the place that is not developed to me. Q. You will concede that it is in exhibit ‘10’ that Messrs. Fressaku Ltd. entered into an agreement with Mr. E. Tetteh. A. When the land was divided into two (2), separate agreements were made. Emmanuel Tetteh owns one and one for Issah Yakubu. Q. I put it to you that it’s only exhibit ‘10’ and ‘10A’ that there was an agreement between Messrs. Fressaku Ltd. to develop the uncompleted structure on the land and Emmanuel Tetteh. A. That is so. Q. How many apartments have been developed on exhibit ‘10’ and ‘10A’? A. Five (5) apartments. Q. I put it to you that currently it is seven (7). A. Two (2) apartments are for Messrs. Fressaku Co. Ltd. The land bought was 24 x 20 feet. They put it up. Q. You will agree with me that there are currently four (4) shops on exhibit ‘10’. A. Yes, that was the agreement between Emmanuel Tetteh and Messrs. Fressaku Ltd. Q. You will agree with me that subsequent to exhibit ‘10’, exhibit ‘12’ supplementary agreement was made. A. After the first (1st) agreement, there was space for allocation for Frederick Nyamekye took another agreement on part of the land. We had completed the uncompleted structure on it. Besides we built three (3) stores and put one (1) bedroom and one (1) single room apartments on top of it. Q. You’ll concede that per exhibit ‘12’, the agreement was to take effect from January 2010 to January 2030. A. That is true. It is the supplementary agreement exhibit ‘12’. Q. You’ll concede that with exhibit ‘10’ you were also to enjoy a two (2) year life span benefits under the agreement. A. It is not enjoyment. It is business used to defray cost. Q. You will concede that whilst exhibit ’10’ is an agreement between Emmanuel Tetteh and Messrs. Fressaku Ltd. exhibit ‘12’ was agreement between Mr. Emmanuel Tetteh and Frederick Issah Yakubu. A. That is the supplementary agreement. Q. I put it to you that exhibit ‘12’ was modification of exhibit ‘10’. A. That is not correct. It is a different agreement. Q. I put it to you further that exhibit ‘12’ clearly exhibited that you were the same person holding Messrs. Fressaku Ltd. A. There is no difference. I am the same Director of Messrs. Fressaku Q. Per your own evidence before this court exhibit ‘12’ the benefits from any constructed work between you and Emmanuel Tetteh goes to Frederick Nyamekye directly. A. There has not been any profit or loss per the term of the agreement when the term elapsed. I will hand it over to him. It is Build Operate and Transfer (BOT). Q. Per exhibit ‘12’, there is no indication of a Build Operate and Transfer (BOT) agreement. A. It is that Mr. Nyamekye is building and renting out and then it will be handed over as appropriate. Q. I further put it to you that exhibit ‘10’ and ‘12’ it amplifies what the Petitioner had earlier told this court that you are the same person trying to hide behind the company. A. I have a company and owns it. I stand alone and the company also stand alone. I am independent of the company. Q. I put it to you that in your attempt to over reach the Petitioner in the court your own exhibit ‘12’ has woefully exposed you. A. That is not true. The Petitioner also put into evidence Exhibit F series which showed a commercial complex and a residential property the Respondent gifted to his eldest daughter from another relationship. The respondent says that these properties belong to Fressaku Company Limited. If the company can gift a residential property to the daughter of the Director of the company it appears that the Petitioner’s contention that the company is the alter ego of the Respondent is more probable. What are the situations in which the corporate veil of the company can be lifted? Moylan J in Prest v Petrodel Resources Ltd noted the general principles relating to piercing the corporate veil as follows: Ownership and control were not in themselves sufficient to pierce the corporate veil. Even where there was no unconnected third party interest the veil could not be pierced only because it is necessary in the interests of justice. The veil can only be pierced if there is impropriety. The impropriety must be linked to the use of the company structure to conceal or avoid liability. In order to pierce the veil, both control by the wrongdoer and the impropriety must be demonstrated A company may be a façade even though originally incorporated without deceptive intent. The Petitioner has stated that the Respondent and Fressaku Company Limited are one and the same person since it is the Respondent’s practice to use his company name in all his transactions, personal or not. The Respondent did not deny this assertion. Morkor v Kuma 1998-99 SCGLR 620 states that the corporate barrier between a company and the persons who constitute or run it may be breached only under certain circumstances. These circumstances may be generally characterised as those situations where in the light of the evidence, the dictates of justice, public policy or the Companies Act require. It is impossible to formulate an exhaustive list of the circumstances that would justify lifting the corporate veil. However, the authorities indicate that such circumstances include where it is shown that the company was established to further fraudulent activities or to avoid contractual liablity. The court went further by quoting from Halsbury’s Laws of England (4th ed) Vol 7(1) at paragraph 90 as follows “Notwithstanding the effect of a company’s incorporation, in some cases the court will pierce the corporate veil in order to enable it to do justice by treating a particular company for the purpose of the litigation before it, as identical with the person or persons who control it. This will be done not only where there is fraud or improper conduct but in all cases where the character of the company or the nature of the persons who control it as a relevant feature. In such cases the court will go behind the mere status of the company as a separate legal identity distinct from its shareholders and will consider who the persons are, as shareholders or even as agents, directing and controlling the activities of the company. However, where this is not the position, even though an individual’s connection with a company may cause a transaction with that company to be subjected to strict scrutiny, the corporate veil will not be pierced. What is impropriety? The Merriam-Webster Dictionary defines an impropriety as a wrong or immoral act: an improper act. The petitioner’s signature has appeared on documents relating to the agreements reached between Fressaku Company limited and other parties and she has explained that she used to witness these transactions on behalf of her husband, the Respondent. She has also said that the Respondent uses the company name even when entering into personal transactions. In Dr. Owusu Afriyie Akoto v. Adwoa Abrefi Akoto (2010) JELR 68507 (SC) the Supreme Court held that based on the principles in Morkor v Kuma (1998-99) SCGLR 620, Adams v. Cape Industries Plc (1991) 1 All ER 929 and other decided cases that the Courts below, did properly lift the veil of incorporation and granted the respondent the necessary reliefs. In this case, the Appellant had dealt inequitably with the respondent as regards their jointly acquired properties by various stratagems and secret dealings. The appellant in many instances, without the knowledge of the respondent, used the properties which he had jointly acquired with the Respondent to take loans which he deliberately refused to service and thereby allowed the properties to be repossessed by the lending financial institutions. The case of Quartson v Quartson supra informs us of the need to consider the peculiarities of each case. The present case can be likened to that of Dr. Owusu Afriyie Akoto v. Adwoa Abrefi Akoto supra because the Respondent is using the company as a cover to deny the Petitioner access to the property. In this present case, I am of the view that considering all of the evidence adduced by the parties as a whole, the properties acquired by the Respondent in the Company’s name were actually marital property since the Respondent used the company name interchangeably with his own in transactions. The Respondent is attempting to use the company to commit an impropriety by denying the Petitioner access to property that both parties to the marriage have contributed to by hiding under the separate legal personality of the company.it appears that at this point the company is a facade even thought it was not originally incorporated with deceptive intent. The company is the alter ego of the Respondent for which reason looking at the contribution of the Petitioner to the home, contributing to the upkeep of the home, raising the children, cooking and cleaning. I order that the Respondent hand over 50% of Fressaku Companies interest the properties (matrimonial home and commercial complex at Odorkor) registered in the company’s name to the Petitioner as joint owner of the said properties stated in her relief. Thus, holding a lease hold till the end of the term of the lease stipulated in the agreement and ownership for that which was purchased outright. Issue 5 Whether or not the Respondent should make a lump sum payment of GH₵100,000.00 Ghana Cedis to the Petitioner and also provide her with an Accommodation? Under section 19 of the Matrimonial Causes Act, 1971 (Act 367) ‚19. The court may, whenever it thinks just and equitable, award maintenance pending suit or financial provision to either party to the marriage, but an order for maintenance pending suit and financial provision shall not be made until the court has considered the standard of living of the parties and the circumstances.‛ Section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) states: 20(1). ‚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 Oparebea v Mensah [1993-1994]1 GLR 61-75 the court pronounced upon the scope of section 20(1) of Act 367. Lutterodt JA (as she then was) held that ‚Section 20(1) of the Matrimonial Causes Act, 1971 (Act 367) empowered a judge to make an order either for (a) settlement of property rights arising from claims of substantial contribution either in money or money's worth; or (2) financial provision; or for both where the spouse was not merely praying for financial provision but was also alleging an interest in the property‛ The court has the prerogative to order either party to make a lump sum payment to the other. The party that is of substantial financial means is normally the one ordered to pay. The evidence on record shows that the Petitioner is a self-employed seamstress whilst the Respondent is a businessman. In the case of Gloria Omaboe v. Innes Nii Noi Omaboe 2017 JELR 27 10831 (HC) the court stated that in making the award the court must take into consideration certain factors, some of which are: Standard of living of the parties and their circumstances. The conduct of the parties. Their positions in life, ages and respective means. The existence of children and any other circumstance which may be important. The age and duration of the marriage. The Respondent says that the Petitioner is not entitled to the lump sum payment because of adultery but he has failed to prove the allegation of adultery beyond reasonable doubt. In my view, since the Petitioner has returned to her father’s house, it is expedient that she finds accommodation for herself and the issues of the marriage whose custody have been granted to her. I believe that it would be in the right direction to provide her with some level of accommodation for her to continue bringing up the children comfortably. The court however takes into consideration the fact that she is given 50% share of the marital home at Odorkor. Taking into consideration fact that the Respondent is responsible for the education and maintenance of the children, that the Petitioner has been married to the Respondent for 23 years and has had her shop closed down by the Respondent for which reason she may have lost a number of customers, I will order that the Respondent to pay the amount of GH₵20,000 as financial provision. The court has taken into consideration the fact that the Petitioner will have to continue to use the shop to ply her trade (dress- making business), as that is her only source of income. Issue 6 Whether or not the Respondent should pay a monthly maintenance sum of GH₵1,000.00 Ghana Cedis to the Petitioner? Flowing from the discussion of issue 4 in relation to custody; The Petitioner has been granted custody of the two children with reasonable access to the Respondent who is to continue with maintenance and upkeep of the children. A monthly maintenance fee of GH₵1,000 Ghana cedis is acceptable to maintain the children whilst the Petitioner establishes herself once again in her dressmaking business and completes her current education. DECISION 1. The court finds that the marriage existing between Mercy Holomah and Frederick Nyamekye has broken down beyond reconciliation same is hereby dissolved. A decree of divorce is accordingly issued. 2. Custody of the two children namely Kwame Nyamekye and Gabrielle Serwaa Nyamekye is granted to the Petitioner with reasonable access to the Respondent. 3. The Petitioner is entitled to half (50%) of the properties of Messrs. Fressaku Company limited where the parties used as the party’s marital home at Odorkor as well as the Commercial Complex at Odorkor. The Petitioner is to maintain the use of the shop which she used for her dress making business as part of the 50% share. 4. The Respondent is ordered to continue to pay the school fees and medical bills of the two children. 5. The Respondent is to pay a lump sum of GH₵20,000 cedis to the Petitioner. 6. The Respondent is ordered to pay a monthly sum of GH₵1,000 cedis to the Petitioner for the upkeep of the children. 7. Each party is to bear their own costs. LEGAL REPRESENTATION JEFFREY ABBEY ADAMSON FOR PETITIONER NTOW-FIAKO FOR RESPONDENT H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 29