JOYCE AGYEI VRS GIDEON AGORXOR (C5/161/2021) [2022] GHACC 350 (11 November 2022)

IN THE CIRCUIT COURT HELD IN ACCRA IN 11TH DAY OF NOVEMBER, 2022 BEFORE HIS HNOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ========================================================= JOYCE AGYEI GBAWE, GRAVEL JUNCTION ACCRA VRS GIDEON AGORXOR GBAWE, GRAVEL JUNCTION ACCRA SUIT NO. C5/161/2021 ===== PETITIONER ===== RESPONDENT COUNSEL FOR PETITIONER – JOSEPHINE OWUSU SARPONG ESQ. COUNSEL FOR RESPONDENT – HENRY K. AMPOFO ESQ. FINAL JUDGMENT The Petitioner in this case prays this Honourable Court for the following reliefs. (a) An order for the dissolution of the marriage celebrated between the parties. (b) An order for the respondent to pay the third issue’s school fees, feeding fees and bills as and when they may fall due. (c) An order for an equitable distribution of the jointly acquired six (6) bedroom self- contained property with three (3) stores situate at Gbawe 39, Gravel Junction in Accra. (d) That the court orders the respondent to make lump sum financial payment to the petitioner. However, the respondent cross-petitioned as follows: (1) The marriage between the parties be dissolved. (2) That the court adopts the agreement reached between the two families be endorsed by the Honourable Court. Parties were ordered to file their respective witness statement and they complied with the court’s orders. WITNESS STATEMENT OF JOYCE AGYEI HEREIN That petitioner lives and trades at Gbawe Gravel Junction in Accra, that their customarily marriage was celebrated about twenty-nine (29) years ago at the Institution of the petition. Immediately after the marriage they both co-habited at their current matrimonial home at Gbawe, Gravel Junction, Accra and there are three (3) issues of the marriage named, DENNIS AGORXOR (26yrs), FIDELIA AGORXOR (24yrs) and JOSHUA AGORXOR (21yrs). It is also the case of the petitioner that, they both jointly acquired a property in the course of the marriage which is a six (6) bedroom self-contained apartment with three (3) stores attached at the same Gbawe, Gravel Junction, Accra, which the parties pulled resources together and built same, “I helped him complete the property. That she is the only wife of the respondent and she solely assisted the respondent put up the said property since respondent has no other wife apart from her. I know respondent had one issue before I married him but without a wife. It is also the case of the petitioner that for the past eight (8) years, respondent has failed to maintain her as well as the issues of the marriage even school fees for the second and third issues when they were schooling, respondent never paid any. The respondent used to bring a difference women to stay in our matrimonial home for about two to three weeks without any explanation to me, and that respondent has stopped talking to me and the issues of the marriage for the past two (2) years. That the respondent has packed all my items in the kitchen to my store and has also locked up the Hall of the matrimonial home, hence denying me and the issues of the marriage access to same. The petitioner feels very uncomfortable in the matrimonial home especially at the place I trade which is located at the matrimonial home, respondent even once cut off electricity supply to the store. That respondent is quick tempered and he sometimes physically and mentally abused me for no apparent reason. Respondent once caused the arrest of myself and my mother by the police for the only reason that my mother was a witch. Petitioner claims she had one issue before the marriage which respondent is aware of before the marriage. Both families and friends have tried without success to reconcile us but respondent’s attitudes always threw them off. The petitioner insists that the customary marriage between them has not been dissolved. The attitude of the respondent has caused the petitioner so much stress, anxiety, frustration, emotional hardship that she cannot reasonably be expected to remain as wife to respondent. The unreasonable behavior of the respondent has led to the breakdown of the marriage beyond reconciliation, hence prays the court to dissolve the marriage and the other reliefs as endorsed. WITNESS STATEMENT OF GIDEON AGORXOR That he is a fabricator of Aluminum frames, that prior to the current marriage in 2006, I was already married to one EMELIA JACKSON with whom I had one girl with who is 31 years and staying with. I got married to Emelia in 1987 and she died in 1990. I got to know petitioner in 1993 and had a child with her in 1994. The respondent claims he bought a piece of land in 1996 in which is the disputed property but documents covering the land was given to me in 1989 I commenced the building in 1986 and completed it in about 1992, where my sister, Mary moved to stay in it with my mother. I even in 1993 rented it out to one Wilhelmina Laryea for four (4) years and my sister moved to stay in the Garage whilst my mother moved to stay in the village. I also moved to occupy the building in 1997, whilst petitioner was staying at Nkwatia. I had a problem with my wife so we were separated, but she used to visit me sometimes. My wife eventually died in 2014. The petitioner had one child already but hid it from me, until I realized it same six (6) years after our marriage. Petitioner joined me in the property from Kwatia in 1998 whilst she was still my girlfriend. Petitioner when I met her was a bar attendant, but I later constructed a wooden structure and gave her capital to do petty trading in foodstuffs. I later converted the wooden structure into a store made of blocks in 2010 and also topped up the capital she was trading with. It is also the case of the respondent that petitioner is quick tempered and that she once struck my head with electric iron. I fell ill some time ago and was admitted but petitioner never visited me at the hospital. Because of the admission I became financially handicapped and pleaded with petitioner to provide for the children. The respondent also alleged that because of the behavior of the petitioner, he stopped eating her food as well as talking to her. Respondent also avers that the marriage has been dissolved customarily and the parties as well as the panel members agreed on the following: - GH¢5000 as compensation money - Accommodation for the petitioner for 2 years - GH¢5000 to rent a store of her choice. The parties agreed that the accommodation should be settled first before the marriage would finally be dissolved with the acceptance of the second bottle of schnapps and other drinks. The accommodation is yet to be settled when this current petition was received. However, during cross examination on both parties, some of the facts stated in parties’ respective witness statement were denied whilst some were also confirmed. The issues left for the court to decide are: - Whether or not the marriage between the parties has broken down beyond reconciliation. - Whether or not the court can go ahead to grant other reliefs filed by the petitioner i.e. equally share of jointly acquired properties, the lump sum payment etc. - Whether or not the court can confirm what the outcome of the panel members that set down to dissolve the marriage as prayed in the cross-petition. To determine whether or not the marriage has broken down beyond reconciliation, section 1(@) of MATRIMONIAL CAUSES ACT; 1971 (ACT 367) provides that the sole ground for granting a Petition for a divorce shall be that the marriage has broken down beyond reconciliation. Then section 2(!) of the same Act 367 explains that 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: Section 2 (1) (a) That the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent. (b) That the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent. (c) The respondent has deserted the petitioner for a continuous period at least two years immediately preceding the presentation of the petitioner. (d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceeding the presentation of the petition and the respondent consent to the grant of a decree of divorce provided that 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 lived together as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition. (f) That the parties to the marriage after diligent effort been unable to reconcile their differences. ASH V ASH (1972) 1 ALLER 582 and 586 --- ‚In the instant case, the petitioner is required to adduce sufficient evidence in proof of Act 367 to satisfy the court to rule that the marriage between the parties has broken down beyond reconciliation. KOTEI V KOTEI (1974) 2 GLR 172 --- ‚In order to succeed on a petition for divorce, the petitioner has the burden in proving facts of the break down. There must be existence of at least one of the above mentioned conditions justifying the exercise of a court’s discretion to dissolve the marriage. HALL V HALL (1987) 1 WLR 1246 page 1256 - that a reasonable spouse in the circumstances and environment of these spouses could not be expected to continue to endure. CHARLES AKPENE AMOAKO V SAPHIRA KYEREMA AGBENG (2015) 99 GMJ 202, - The combined effect of both section 1 & 2 of Act 367 is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in section 2 of the Act has been proved. From the evidence adduced by both parties, hey both consent to the dissolution of the marriage, the allegations and counter allegations have broken the foundation of their marriage. Also their evidence to the fact that several attempts have been made to settle their differences but to no avail is even enough to conclude that the marriage between the parties have broken down beyond reconciliation, hence the marriage has been dissolved, marriage certificate canceled and, in its place, divorce certificate is issued to both parties to signify the end of the marriage effective 11th November, 2022. The petitioner’s initial claim was that that six (6) bedroom apartment was jointly acquired by the parties but on cross examination it became clearer that before she met respondent the building had already taken off but at roofing level. Building a six (6) bedroom apartment, respondent an aluminum fabricator, comparing his income will take a longer time to complete. The building may be habitable in 1998 when according to the respondent himself, at paragraph 22 of his witness statement but may not be completely finished, more jobs needed to be done. Also it is possible from the evidence adduced that even before the parties moved into to stay together in the apartment, that is, before they lawfully got married, petitioner was doing same since contributions towards the building. In PETER ADJEI V MARGARET ADJEI, SUIT NO. J4/06/2021 DATED 21, APRIL 2021 per JUSTICE APAU JSC--- “Any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohamadan ordinance is presumed to have been jointly acquired by the couple and upon divorce should be shared between them on the equality is equity principle. This presumption of joint acquisition is however rebuttable upon evidence to the contrary. What this means in effect is that, it is not every property that acquired single handedly by any one of the spouses during the subsistence of the marriage that can be termed as “a jointly acquired” property to be distributed at all cost on this equality is equity principle. Rather it is the property that has been shown from the evidence adduced during the trial to have been jointly acquired irrespective of whether or not there was a pecuniary or substantial contribution from both spouses in the acquisition. The operative term or phrase is “property jointly acquired” during the subsistence of the marriage. Where a spouse is able to lead evidence in rebuttal or to the contrary, as was in the case of FYNN V FYNN Supra, the presumption theory of joint acquisition collapses ---“ However in the same case, per PWAMANG JSC – Act 22 (2) (b) of the 1992 constitution governs cases of property distribution on divorce and it does not say “ assets which are acquired during marriage shall be distributed equitably between both spouses upon dissolution of the marriage. It is explicit in referring to properties “JOINTLY ACQUIRED” So the impression should never be created that it is the 1992 Constitution that says the properties acquired during a marriage is a joint property. Act 22(2) (b) – Assets which are jointly acquired during marriage shall be distributed equitably between spouses upon dissolution of the marriage. Section 10(1) and (2) , 11(1) and (4), 12 (1) and (2) and 14 of the Evidence Act 1975 (NRCD 323) when summarized a lot of burden is put on the petitioner to prove to the court that, the disputed property was jointly acquired. IN RE ASHALLEY BOTWE LANDS; ADJETEY ADJETEY AGBOSU & OTHERS V KOTEY & OTHERS (2003-2004) SCGLR 420 at 732 per BROBBEY JSC ---- “The effect of sections may be described as follows: The plaintiff who took the defendant to court has claim he is entitled to from the defendant --- ZABRAMA V SEGBEFIA (1991) 2GLR 221- ‚ A person who makes an averment or assertion which is being denied by his opponent was under the burden to establish that his averment or assertion is true. And if he does not discharge this burden, unless he leads a dismissible and credible evidence from which the facts or facts he assets can be properly and safely inferred‛ Even though in the same case of PETER ADJEI V MARGARET ADJEI (Supra) the leaned justice also stated that ---“The duties performed by the wife in the home like cooking for the family, cleaning and nurturing the children of the marriage etc which go a long way to create enabling atmosphere for the other spouse to work in peace towards the acquisition of the properties concerned was enough contribution that should merit the wife a share in the said properties upon the dissolution of the marriage but the petitioner did not go that tangent which the court will stand on it to rule in her favour, no evidence was lead to that effect. From the evidence adduced in court and the documents filed by especially the respondent, it does not seem to convince the court that the property was jointly acquired and qualifies for equality in equity principle. However what is more probable to happen was the petitioner also contributed in her small way to bring the property to its current stage. The court will not therefore use the equality in equity principle here or better still will not declare the property to be jointly acquired, but when it comes to the lump sum, the court will enhance it to make way for her small contributions made. LUMP SUM Section 20 of Matrimonial Causes Act 1971 (Act 367) section 20(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 properties rights or in lieu thereof as part of financial provision as the court thinks just and equitable. BARAKE V BARAKE ( 1993-1994) IGLR 635 ‚On such application, the court examines the needs of the parties and makes a reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse‛. AIKINS V AIKINS (1979) GLR 233 per SARKODIE J- ‚The court is entitled under section 20 of Act 367 to order a lump sum payment ----The husband’s ability to pay was not merely to have physical cash but it could also be determined by his ability to provide money by way of overdraft or loan and in the essence of full and frank information by husband as to his financial provision, the court was entitled to draw inference adverse to the husband as to his capacity‛ Respondent himself in his evidence adduced in court, his stayed with the petitioner for over sixteen (16) years, petitioner has served him a lot. Petitioner was living with the respondent in the six (6) bedroom apartment for sometime and she has acquired some standard also bearing in mind petitioner’s contributions towards the disputed apartment that she has to be compensated for, the court orders the respondent to pay to the petitioner Fifty Thousand cedis (GH¢50,000), rent a two bedroom apartment for her two years, and also rent a store for her business to go on. The lump sum payment, respondent should pay within two weeks half of it, and the balance two months instalments. Every award to the petitioner should be settled six months after the judgment. However, the three (3) issues of the marriage are now adults, hence no award was made on that behalf. HAPPEE V HAPPEE (1971) I GLR 104 ‚ A cross petition like a counterclaim, is, in my view to all intents and purposes an action by the respondent against the petitioner. It is an independent and separate action ---- the time made of considering the ‘claim’ and counterclaim is, that they are wholly independent suit which, for convenience sake of procedure, are combined in one action‛ The respondent also cross petitioned that; (2)The court adopts the agreement reached between the two families be endorsed by the Honourable Court. (i) GH¢5000 for compensation (ii) GH¢5000 to enable petitioner to construct a container (iii) Rent a chamber and a hall self-contained to petitioner From paragraph 47 of respondent’s witness statement that accommodation should be settled first before the marriage would be finally dissolved with acceptance of the drink bottle of schnapps and other drinks. it was agreed Hearing from the respondent himself the above condition was not satisfied, hence the court action. This goes to support the assertion made by the petitioner that the customary marriage has not been dissolved. Therefore, the cross petition that the court adopts what was awarded by the panel members dismissed. DECISION: MARRIAGE DISSOLVED. H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 10