Irene Ahwefe Mensahvrs George Kwame Atiadeve [2022] GHACC 281 (15 December 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, THE 15TH DECEMBER, 2022, BEFORE HER HONOUR ROSEMARY BAAH TOSU (MRS) – CIRCUIT COURT JUDGE SUIT NO: C5/16/2021 IRENE AHWEFA MENSAH PLAINTIFF H/NO: 647/23 OBUOBI LANE ABEKA- ACCRA VS. GEORGE KWAME ATIADEVE. DEFENDANT H/NO: 647/23 OBUOBI LANE ABEKA -ACCRA ========================================================= JUDGMENT The parties were married traditionally, under Ewe Customary Law on the 1st of September, 2012. Petitioner prays this Honourable Court to dissolve her marriage with Respondent her husband because he has behaved in an unreasonable manner towards her. Below are the particulars of unreasonable behaviour presented by Petitioner in proof of her case that the parties’ marriage is broken down beyond reconciliation. Petitioner pleads that a. The Respondent is physically and verbally abusive b. There is no communication, ambiance or intimacy in the marriage c. Respondent has on several occasions indicated his disinterest in the marriage d. Respondent has moved out of the matrimonial apartment e. The Respondent’s parents interfere in the parties’ decision making and are very controlling f. Respondent’s mother abuses Petitioner verbally without any provocation g. There is lack of affection in the marriage For these reasons, Petitioner contends that the marriage is broken down beyond reconciliation. Petitioner prays the Honourable Court to grant her the following reliefs a. Dissolution of the marriage b. The Petitioner be granted custody of the children of the marriage Jerome Elikem Atiadeve, Ann- Gabrielle Akua Atiadeve and Angelo Yaw Nubuke Atiadeve c. That the Respondent be ordered to make to the Petitioner and the Children such maintenance pending suit and other periodic payments as may be just. d. An order that Petitioner be declared as joint owner of a 2007 Toyota Prius with Chassis number JTDXB20U477574720 and with registration number GG 3411-16 e. That Petitioner be entitled to half share of the said 2007 Toyota Prius f. An order that Petitioner be declared joint owner of a 3. 20 acre farmland, lying and situate at Akwansu-Nsawam. g. That the Petitioner is entitled to half share of the 3. 20 acre farmland, lying and situate at Akwansu- Nsawam h. That the Respondent be ordered to provide a suitable apartment for the Petitioner and the children of the marriage i. The Respondent be made to pay alimony of Fifty Thousand Ghana cedis (GH¢50,000) j. That the Respondent be made to pay the entire cost incidental to this action. Respondent is not opposed to the grant of the dissolution of the marriage, he admits that he has consented to the dissolution. He however denies that he has acted unreasonably. Respondent pleads that it is rather Petitioner who has acted unreasonably because of her abusive and aggressiveness towards him. Respondent denies that his parents are controlling or that his mother verbally abuses Petitioner. He says it is the Petitioner who rather insults his mother and narrates an incident where Petitioner insulted his mother in the presence of Respondent’s father. Respondent says he was compelled to move out of the matrimonial home as a result of Petitioner’s aggressive nature. Respondent pleads that he has been solely responsible for everything in the marriage including feeding, maintenance, paying of school fees and even bathing and preparing the children for school. Respondent prays that this Court should award him custody of the three children of the marriage since he is best suited to take care of them. Respondent further prays that the Court would dismiss Petitioner’s prayer to be declared joint owners of the vehicle and the farm land situate at Akwansu, Nsawam. In respect of Petitioner’s request for alimony, Respondent says that during the family deliberations, Petitioner requested to be settled with GHS10,000 which he has handed over to his father for safekeeping. In a Reply to Respondent’s Answer dated 2nd July, 2021, Petitioner joined issues with Respondent. At trial, the parties led evidence and were cross-examined extensively. Petitioner tendered in evidence, Exhibit A, vehicle registration documents for 2007 Toyota Prius vehicle. Respondent also tendered the following documents in support of his case  Exhibit 1- Indenture dated 2013  Exhibit 2- Indenture dated 2013  Exhibit 3- DVLA Form C for GC-4340Z  Exhibit 4- DVLA Form C for GE-2144  EXHIBIT 5- Medical Records of Angelo Atiadeve ISSUES FOR DETERMINATION In the Address filed on behalf of Petitioner, the following issues were set down for determination 1. Whether or not the marriage between the Petitioner and Respondent should be dissolved. 2. Whether or not the Petitioner should be granted custody of the issues of the marriage. 3. Whether or not the Petitioner and the children are entitled to be provided with suitable accommodation by the Respondent. 4. Whether or not the Petitioner is entitled to be paid alimony of GHS50,000 by the Respondent 5. Whether or not the Petitioner is a joint owner and entitled to an equal share of the 2007 Toyota Prius with chassis number JTDXB20U477574720 and with registration number GG-3411-16 as well as the 3.20 acres farmland lying and situate at Akwansu- Nsawam. The first issue to be determined by the Court is whether or not the marriage celebrated by the parties on the 1st of September, 2012 should be dissolved or is broken down beyond reconciliation. The law governing the dissolution of marriages in Ghana is the Matrimonial Causes Act 1971 (Act 367) and it provides that the sole ground for the dissolution of a marriage is that the marriage is broken down beyond reconciliation. Section 2 of Act 367 provides the facts to be established by a party to show that the marriage has broken down beyond reconciliation. Both parties have in the evidence led relied heavily on section 2(1)(a) of the Matrimonial Causes Act 1971 which is on the test of Unreasonable Behaviour (a) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent… Unreasonable behaviour is the term used to describe a particular state of affairs. There are several examples of conduct that may constitute unreasonable behaviour, these include domestic abuse, excessive/lack of sex, unreasonable sexual demands, inappropriate association with another person, debt/financial recklessness, verbal abuse etc. Parties in this matter have not led sufficient evidence for me to arrive at a conclusion on their allegations of unreasonable behaviour. The evidence however is uncontroverted that parties after having some challenges in their marriage were separated for about twenty months and this separation led to a lot of intervention from family members and friends. Both parties have led efficient evidence to show the efforts made by family members, friends and church to reconcile them which were unsuccessful and ultimately leading to an understanding to dissolve the marriage customarily. One of the grounds provided under Act 367 based on which a Court can conclude that a marriage is broken down beyond reconciliation is section 2(1)(f) (f)That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Based on the strength of the evidence led by both parties I find that the parties have after diligent effort been unable to reconcile their differences. I find that the marriage is broken down beyond reconciliation. The second issue to consider is Whether or not the Petitioner should be granted custody of the issues of the marriage. The status quo is that these children are currently in the custody of their father, the Respondent and he has support from his parents in whose home they all reside. I have concluded that in the best interest of the children of the marriage, this status quo needs to be maintained. When it comes to matters concerning children, the Court must pay heed to the welfare principle. Section 2(1) of the Children’s Act, 1998 (Act 560) states ‘The best interest of the child shall be paramount in a matter concerning a child’. Though the children are very young, Respondent has led enough evidence to convince this Court that he is the proper person to be awarded custody. Not only is Respondent invested financially in their wellbeing but he is also invested physically and emotionally. Respondent has also led sufficient evidence to show efforts he has put into the life of Angelo, who has developmental challenges. Respondent has also shown that he has a good social support in the persons of his parents who can keep an eye on the children if he is not available. In the case of Petitioner, though her character in relation to the children has not been completely impeached, she has not led sufficient evidence to show that she even has secure employment since she is still working on contract basis. During trial it came out that she was working in Kumasi, she now claims to have returned to Accra. This Court also has no evidence of where she stays and if she has any support system for the children. Awarding custody of the children to Petitioner might lead to a downward trend in their lives because they might have to relocate, change schools which will lead to a break in the ties they might have already formed in schools, with grand-parents etc. I would based on this analysis grant custody of the three children of the marriage to the Respondent and reasonable access to Petitioner. The children are to spend school vacations and one weekend per month with the Petitioner. The issue of maintenance has been adequately dealt with after Petitioner filed a motion for maintenance pending suit. The Court has not had any notice that such maintenance orders are not being complied with. I would consider issues 3 and 4 together. These issues are on the payment of alimony and provision of accommodation for Petitioner. This Court is entitled under section 20 of Act 367 to order that a spouse should make lump sum payments to another spouse. (1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the Court thinks just and equitable. It is trite that in any lump sum payment a Court ought to consider the financial standing of each of the parties. I refer to the case of Obeng vs Obeng (2013) GMJ 158. ‘What is just and equitable may be determined by considering the following factors, income, earning capacity, property and any financial resources which each party has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage, the age of each party to the marriage and the duration of the marriage’ The evidence led shows that Respondent, though a public servant is the superior earner and he also appears to be a resourceful person. It is also clear that since their marriage, Petitioner has relied heavily on the Respondent financially. Considering Petitioner’s reliance on Respondent and the fact that she has had to leave the matrimonial home, it would not be fair to leave her out in the cold. This is because she might have had some legitimate expectations from the marriage which are now dashed. I order Respondent to rent suitable accommodation for Petitioner for a period of two years, within which period she should be able to pick herself back up. Respondent is further ordered to pay Petitioner, an alimony of Twenty Thousand Ghana Cedis (GH¢20,000). The final issues to consider are Petitioner’s prayer to be declared joint owner and entitled to equal shares in the vehicle listed above and also to farmland located at Akwansu in Nsawam. I find this statement made in the case of Quartson vs Quartson (2012) 2GLR 1077 @ 1080 very relevant here. ‚The Supreme Court’s previous decision in Mensah vs Mensah.. ..is not to be taken as a blanket ruling that affords spouses unwarranted access to the property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater to the specifics of each case.’ Under cross-examination by Respondent, Petitioner admitted that Respondent acquired the said cars prior to their marriage, so I cannot make any orders declaring her to be joint owner of property which even the evidence led shows has been sold. Cross-examination of Petitioner at record dated 11th November, 2021 page 10 Que: I put it to you that before we married, I had two cars, Mercedes Benz and Nissan Ultimo? Ans: That is true Que: I have maintained these cars during the marriage I put it to you Ans: Yes The general rule is that he who asserts must prove. He must prove the essential issues central to his case on the preponderance of probabilities which is the standard of proof in a civil matter. Section 12(2) of the Evidence Act, NRCD 323 defines proof on the preponderance of probabilities to be ‘The degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable/likely than its nonexistence’. Petitioner alleges that she jointly acquired a 3.20 acre farmland at Akwansu in Nsawam with Respondent and prays that she is entitled to a half share of this property. Petitioner’s evidence on the acquisition if found at paragraphs 23, 24 and 25 of her witness statement dated 5th October, 2021. 23. After the celebration of our marriage, the Respondent and I jointly acquired a 3.2 acre farmland which is situate and lying at Akwansu near Nsawam in the Akuapim South District in the Eastern Region. 24. The Respondent and I have reduced the farmland into a plantain and coconut plantation. 25. I wish to state that the farmland was acquired in the name of the Respondent’s father Edward Kwabena Atiadeve because the farmland was acquired from the Respondent’s father’s friend and he led the transaction. The Respondent’s father’s name was used to persuade the friend (grantor) to reduce the purchase price of the land. It was agreed that subsequently, the Respondent’s father would transfer the title documents to the names of the Respondent and I unfortunately, the transfer hasn’t been effected. Respondent vehemently denies these assertions and testified that the property indeed belongs to his father and he only supports his father because of his old age and the fact that he is a first born son. Respondent attaches exhibits 1 and 2, which are indentures in the name of his father covering the said farmland. This is what transpired during cross-examination of Petitioner. Record dated 11th November, 2021 at pages 7 to 8 Que: I put it to you that during the entire period of the marriage you never worked I took care of the family. Ans: That is not true Que: Because you never worked, there was no way we could have jointly acquired a landed property, I put it to you? Ans: Yes, but Respondent informed me when he was about to acquire the land of his intentions Que: I put it to you that I did no such thing and I haven’t acquired any land. Ans: Then that means Respondent did not tell me the truth because am relying on his information that he gave to me. Que: I am putting it to you that the only time we spoke about land was when your sister had a matter with the Police and they told me about the difficulty in getting landed property. At that time we were separated and you lived with your mum. Ans: We were not separated if so, Respondent would not have spoken to me about land. … Que: I put it to you that I didn’t acquire it and I went out of my way against my father’s wishes to apply it to the bail so it is unfair to claim we jointly acquired it. Ans: That is not true because when Respondent gave me the document, I realized that his father’s name on it and I questioned Respondent, however Respondent convinced me that it belonged to him but his father was the middleman that is why his name was on it. ……. Que: The indenture was prepared in 2013 and you are now seeing it for the first time in 2016. Ans: Yes Que: Have you ever been there? Ans: No. The case of Ackah vrs. Pergah Transport Limited & Ors (2010) SCGLR 728 held …It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and (11)2 and (4) of the Evidence Act 1975. (NRCD323). The duty of Petitioner is to lead evidence which is of such a quality that it would tilt the balance in her favour. Unfortunately, Petitioner has been unable to meet this standard. It is clear from her evidence that she has next to no knowledge about the acquisition of this farmland, which she has never even visited. It is therefore difficult, to fathom how she reduced this land into a plantation together with Respondent. In the case of Duah vrs Yorkwa (1993-94) GLR 217 it was held that ‘Whenever there was a written document and oral evidence in respect of a transaction, the Court would consider both the oral and documentary evidence and often lean favourably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting.’ The documentary evidence is clear that the property belongs to Respondent’s father. Petitioner’s evidence has not created any probabilities in her favour. Petitioner’s evidence is not to be believed, I dismiss her prayer on this issue. DECISION Having heard the parties and considered the evidence, it is clear that both parties have concluded that the marriage is broken down beyond reconciliation, this Court has also arrived at the same conclusion. It is hereby decreed that the customary marriage celebrated by the parties on the 1st of September, 2012 is dissolved on the grounds that the marriage is broken down beyond reconciliation. I further make the following orders on the facts of the instant case a. Respondent is hereby ordered to make a lump sum payment of Twenty Thousand Ghana Cedis (GH¢20,000) to Petitioner. b. Custody of the three children of the marriage is awarded to Respondent, with reasonable access to Petitioner. Petitioner to have access to children on school vacations and one weekend in a month. c. Respondent is ordered to rent suitable accommodation for a period of two years for Petitioner. d. Petitioner’s prayer to be declared joint owner of the Toyota Prius and 3.20 acre land at Nsawam is dismissed. e. Parties are to bear their own costs. (SGD) H/H ROSEMARY BAAH TOSU (MRS) CIRCUIT COURT JUDGE 11