Joyce Agyapong Vrs Frempong Amoa Agyapong [2022] GHACC 23 (12 December 2022)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON MONDAY THE 12TH DAY OF DECEMBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO. C4/24/2020 BETWEEN: JOYCE AGYAPONG (aka) JOYCE BOATEMAA PETITIONER AND FREMPONG AMOA AGYAPONG … AJEN KOTOKU, NEAR AMASAMAN … RESPONDENT PARTIES: PETITIONER PRESENT RESPONDENT ABSENT COUNSEL: KWASI OPOKU-MANU ESQ. FOR PETITIONER ABSENT F. A. ACQUAYE ESQ. FOR RESPONDENT ABSENT JUDGMENT By a Petition filed on 19th May, 2020, Petitioner claims against Respondent the following reliefs: I. “Order the dissolution of the Ordinance marriage of 20th April 2004 as same has broken down beyond reconciliation. II. An order compelling Respondent to maintain Petitioner during the pendency of petition III. An order awarding the Ajen Kotoku house to Petitioner. IV. Respondent to pay alimony of GHȼ50,000.00 to Petitioner V. That Respondent bear the cost of this Petition VI. Any other relief as this court may deem fit.” Petitioner says that the Parties got married under customary law in 1989 and under the Ordinance on 24th April, 2004. According to her, she is a trader while the Respondent is currently on pension. Petitioner says that there are no issues to the marriage however the Respondent brought four issues into the marriage from a previous marriage, so she took care of them for six years until their mother came for them. It is the case of Petitioner that her trade in the bulk supply of timber used for chewing sticks was doing well so she bore all the household expenses which covered Respondent and the children and the needs of the matrimonial home. According to her, because she was solely keeping the matrimonial home, Respondent with her contribution procured buildings at Asante Mampong Assam, Kaswa and Amasaman. Petitioner says that her business went down due to restrictions on forest products so with the consent of Respondent she went into animal rearing in part of the Adjen Kotoku house. She says that the business was doing well until in 2017 Respondent asked her to take the animals from the house. According to her, in 2014, the Adjen Kotoku house became their matrimonial home and there, Respondent showed an attitude that he was no longer interested in the marriage. She says that he became abusive and insulting and refused to contribute to her business. She says she at a point became paralysed from her hips down and Respondent sent away two house helps who assisted her with house duties. Petitioner says that in 2018 Respondent removed her belongings from the bedroom into another room and asked her to sleep in the living room and refused to talk to her, so she had to find accommodation outside the matrimonial home. She says it is her son who pays for her rent. According to her, Respondent has starved her of sex and has behaved in a way that she cannot be reasonably expected to remain married to him hence the instant Petition. Respondent entered Appearance on 28th May, 2020 and filed an Answer on 16th June, 2020. He contends that Petitioner also brought one issue into the marriage. He says that he did not put up any behaviour to show that he is not interested in the marriage but rather, he asked for the documents of the Adjen Kotoku house for a loan, but Petitioner refused and this infuriated her. He denies being abusive or failing to contribute to Petitioner’s business or her maintenance and medical bills. He denies sending the house helps away and contends that one went away on her own and the other was sent away. He says that Petitioner refused to have sex with him for a continuous period of six months and another nine months and opted to sleep on the floor. According to him, the Petitioner during this period would insult him all night so for his peace of mind, he asked her to sleep in another room during the night but all her belongings remained in the room. He says that it was Petitioner’s insults and nagging which drove him from the house. According to him, Petitioner’s uncle informed him that a man Petitioner had brought to stay in the matrimonial home was not her relative but rather a concubine. He says that Petitioner starved him of sex, and he cannot be expected to live with her because of her behaviour. He says that the Adjen Kotoku house is a joint property of himself, and his daughter Joyce Agyapong and this fact is known to the Petitioner. He says that the property at Asante Mampong is on Respondent’s family land and belongs to him and his siblings. According to him, the four chamber and hall with porch at Kasoa was acquired by him without contribution by Petitioner during the marriage. The sole ground for divorce under Ghanaian law is found in Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367). It states as follows: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” In proving the breakdown of marriage, the Petitioner has a burden of proving one or more of the factors listed under Section 2(1)(a)-(f) of Act 367. Though the Petition does not state expressly which of the factor(s) are being relied upon in proving that the marriage has broken down beyond reconciliation. Section 2(1)(d) and (f) of the MATRIMONIAL CAUSES ACT, 1971 (ACT 367) provide as follows: “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 facts: (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, provided that the 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 despite the refusal. (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.” From the evidence, it is apparent that the Parties have not lived together as husband and wife for a period of over two years and all efforts to have them reconciled have proved futile. Accordingly, based on the evidence, I am satisfied under section 2(3) of Act 367 that the marriage between the Parties has broken down beyond reconciliation. I therefore decree that the marriage under the ordinance celebrated between the parties on 24th April, 2004 at the Christ Presbyterian Church, Darkuman, Accra is hereby dissolved on the ground that the marriage has broken down beyond reconciliation. Section 20(1) of the MATRIMONIAL CAUSES ACT, 1971 ACT 367 provides as follows: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” In the case of BARAKE v BARAKE [1993-94] 1 GLR 635 it was held as follows: “Under section 20 (1) of Act 367, the court had power to grant financial provision where married couples were divorced. The basic consideration was not based on proof of ownership or contribution towards acquisition of the properties to be awarded but on the needs of the parties.” Petitioner prays for an award of the Adjen Kotoku house which at a point served as the matrimonial home. The Respondent has stated that the said house belongs to him and his daughter who contributed financially in putting up the house and Petitioner is aware of this fact. I am unable to find from the evidence before me that it has been shown that the Adjen Kotoku Property is the sole acquired property of Petitioner and Respondent to the exclusion of the said Joyce Adjapong, daughter of Respondent (DW2). DW2 testified that she did in fact contribute to the house at Adjen Kotoku and Petitioner thanked her subsequently. The case put across was that if it was indeed the case that she did in fact contribute to the house, then Petitioner was not aware. In view of the evidence, I consider that it will not be just to settle the said Adjen Kotoku house on Petitioner solely. Though in his Answer Respondent claims ownership of the Kasoa house and says Petitioner did not contribute to its construction, in his evidence before the court, he states that the said house belongs to him and his siblings. Petitioner also states that she contributed to the construction of the Kasoa house. I am unable to find evidence of the Kasoa house belonging to Respondent and his siblings. In view of the fact that Petitioner currently lives in a rented property, I order that the Parties are joint owners of the Kasoa property. Accordingly, Respondent is to convey to the Petitioner an equal part of the property as settlement of property rights. Petitioner prays for an amount of GHȼ50,000.00 as alimony. In the case of AIKINS v. AIKINS [1979] GLR 223 it was held as follows: “The court was entitled under section 20 of Act 367 to order lump sum payment and where the husband had capital assets sufficient for that purpose, the court should not hesitate to order a lump sum…” From the evidence, it is not in dispute that the Respondent is on retirement and is currently unemployed. Petitioner testified that she is a Trader. There is however no evidence of the earning capacities of Parties before this court. It is however a reasonable conclusion to draw from the entirety of evidence adduced that Petitioner earns an income. It has not been shown by the evidence before me that the Respondent has capital assets to make a lump sum payment to Petitioner. In making an order for alimony, a key factor the court is to consider is whether or not the person making the claim for alimony is financially dependent on the other party. From the evidence, Petitioner is not financially dependent on Respondent. Indeed, the evidence is that Respondent used to send money to Petitioner however she sent the monies back and instructed that Respondent should not send her money again because the amount had been reduced by Respondent. Other factors the court is to also consider the circumstances of the case and the financial situation of the Parties as well the conduct of the Parties. CRENTSIL v. CRENTSIL [1962] 2 GLR171 Having regard to the entirety of the facts and evidence before the court, I shall order Respondent to pay an amount of Five Thousand Ghana Cedis (GHȼ5,000.00) as alimony to Petitioner. The amount may be paid by reasonable instalments. There shall be no order as to costs. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN 7