Doris Kumah Tsatsu Vrs Godfred Ganyo [2022] GHACC 54 (11 November 2022)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 11TH DAY OF NOVEMBER, 2022 BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE SUIT NO.: C5/30/2021 DORIS KUMAH TSATSE PETITIONER V GODFRED GANYO RESPONDENT JUDGMENT On 25/8/2020, the petitioner filed the present petition before the court praying for the following reliefs; a. the marriage celebrated between the parties herein on 9th of December 2000 be dissolved b. legal cost of the suit. c. Any other order or orders as this court may seem fit. Per the petition, Petition seeks dissolution of her marriage to Respondent celebrated on the 9th of December 2000 on grounds that the marriage has broken down beyond reconciliation. According to Petitioner parties have not lived together as husband and wife for some time now and several attempts by family members of both parties, elders of the church and friends interested in saving the marriage have proved futile. She further contended that Respondent had been meting out uncaring treatment to her including assaulting and threatening to kill her and some of her siblings. Petitioner Respondent in his answer to the petition vehemently denied any assault of threatening Petitioner or her siblings and contended that it was Petitioner who threw him out of their joint matrimonial home. He averred that he had at all times tried to live peacefully in the matrimonial home with Petitioner. According to Respondent he facilitated Petitioner’s travel to Holland and after he also had the opportunity to travel to London, he remitted Petitioner monthly including sending her various monies to do business with renovate the matrimonial home at Anyaa purchased with proceeds of the business. He contended that Petitioner out of the proceeds of the business acquired the following properties; cold store at Anyaa Market, One-acre plot(four plots) at Akwati junction, off Kasoa Winneba Road, a mansion at her hometown Hiamankyene, near Kete Krachi, a plot of land at Kasoa, a Hynudia Tucson SUV. Respondent further averred that he was persuaded in 2012 by Petitioner to return from London to Ghana to help manage the flourishing business. He therefore signed from his work and joined Petitioner to run the business. He stated further that Petitioner had brought her brother and his four children from different mothers and other family members into the matrimonial home without her consent and this has affected her privacy and quiet enjoyment of the matrimonial home causing intermittent conflicts when he complains. He stated that he was currently perching with friends after Petitioner suddenly brought thugs to force him out of the matrimonial home. Respondent therefore crossed petitioned for the following reliefs; 1) That the marriage celebrated between the parties on 9th December, 2000 be dissolved. 2) That each party bears his/her own costs. 3) That the following properties be shared equally between the parties. a. The 5-bedroom matrimonial home, House No. 229, Opposite Anyaa Police Station, Accra. b. The Cold Store business at Anyaa market. c. One-acre land (Four plots) at Akwati Junction, off Kasoa Winneba Road; d. A mansion in Petitioner's hometown, Hiamankyene, near Kete Krachi; e. A plot of land at Kasoa. f. Hyundai Tucson SUV. g. Any other order(s) as this Honourable Court may deem fit. Petitioner in her reply denied receiving any assistance whatsoever from Respondent in her travel to Holland, sending her money for the businesses, acquiring the matrimonial home or any other property. She contended that it was her uncle and his wife who gave her USD25,000 to start second hand cars and clothing business after she was refused re-entry into Holland in 2004 and has to remain in Ghana a loan she is still paying. In respect of the cold store at Anyaa market, she contended that she started same in 2015 from a financial institution after the earlier car and used clothing business failed. She averred that Respondent swore never to acquire properties with her because of her barrenness and that the properties were bought with the support of her siblings. Petitioner contends that Respondent was not entitled to any of the properties and that the one-acre plot of land belonged to her siblings, the house at her hometown was a family property, the Kasoa plot is her self-acquired property as well as the Hyundai Tucson vehicle. Issues for determination 1. Whether or not the marriage has broken down beyond reconciliation. 2. Whether or not the matrimonial home and other properties acquired during the subsistence of the marriage is a jointly acquired property of the parties. 3. Whether or not Respondent is entitled to a share of properties acquired in the course of the marriage. The standard of proof in civil case such as the present action is proof on the preponderance of probabilities. Section 12(2) of Evidence Act NRCD 323 defines preponderance of probabilities as “Preponderance of the probabilities” means that 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 than its non-existence.” In the case of ARYEH & AKAKPO V AYAA IDDRISU [2010] SCGLR 891, the Supreme Court unanimously held that a party who has counterclaimed bore the burden of proving his counterclaim on the preponderance of probabilities and would not win on that issue only because the original claim had failed. See the cases of Malm v Lutterodt [1963] 1 GLR SC & Apea v Asamoah [2003-2004] 1GLR SC 226, 246. Respondent therefore also must lead evidence to prove his assertions/allegations. Both Petitioner and Respondent therefore assume the onus to lead sufficient evidence in support of their assertions and their relief(s). There is only one ground for dissolution of a marriage under the laws of Ghana. Section 1(2) of the Matrimonial Causes Act, 1971 Act 367 states “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. Under section 2(1) of Act 367, a petitioner must satisfy the court of one or more of the instances listed therein as proof that the marriage has broken down beyond reconciliation. Petitioner’s reason for seeking the dissolution of the marriage is centred on parties not living together as husband and wife, unreasonable behaviour of Respondent and irreconcilable differences. Petitioner in her evidence in chief testified that 3 months of cohabitation after their marriage, she was assisted by her brothers in Holland to join them. Attempt to get Respondent join her in Holland failed. She therefore asked her brothers to assist Respondent travel to London which they did in 2003. In 2004 when she returned to Ghana to regularize her documents, she was refused re-entry into Holland and she had to remain in Ghana. They lived in different countries until about 2008, she passed through London to see Respondent and suggested to him that since they continue to live apart as couple, they should separate. Respondent returned to Ghana in 2012 to live with her in her Anyaa House. Soon after returning from London, Respondent started behaving badly towards her and would pick up a quarrel with her at the least opportunity and call her a barren woman. She stated Respondent exhibited violent behaviour towards her and threatened to kill her and the siblings and on one of such occasions, she and her brother reported the threat to stab them to the Anyaa Police Station. She contended that parties had not cohabited for sometime now. Respondent on the other agrees that the marriage has broken down. He however attributed same to Petitioner bringing her brother and his four children from different mothers into the matrimonial home without his knowledge or consent which disturbs privacy and quiet enjoyment of the house. He states further that whenever he complained of them, it turns into a quarrel and he had been turned into a stranger in his own house. He admitted petitioner lodged report to the Anya police but the complaint was found to be frivolous so he was asked to return back to the matrimonial home after weeks away from the home. Petitioner in her evidence fails to give the court the period of time parties have allegedly not lived together as husband and wife. She merely state that parties have for sometime now not lived together as husband and wife. Under section 2 (1) of Act 367, the duration of parties not living together as husband and wife determines the legal requirement needed for it to suffice as a break down of marriage. in the absence of the period, the court is unable to find that parties have failed to live as husband and wife thereby sufficing as a break down of marriage. In respect of the Respondent’s alleged unreasonable behaviour of insulting her that she is a barren, threatening to kill her etc, Respondent in his answer denied these assertions thereby putting same in issue. It was therefore not sufficient for Petitioner to merely repeat same without cogent proof. The Supreme Court in the case of DON ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 at 736, held as follows “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. 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 reasonable than its non-existence”. Admitted in matrimonial cases, there usually aren’t witnesses and documentary evidence to their dealings. However in this case, Petitioner claim Petitioner insults her at the least provocation as a barren and Respondent repeatedly threatens her and her brother with death. They had at one point had to report the matter to the Anyaa Police Station. Petitioner therefore had the opportunity to call the said brother to testify in the matter in support of this assertion and or tendered the police report on the complaint and their findings if any. Petitioner only repeated her assertions on oath and failed to lead cogent evidence to prove the unreasonable behaviour of Respondent. Petitioner contends further that parties are unable to reconcile their difference after several attempts by family members’ friends and elders of their church. In the case of KOTEI V KOTEI [1974] 2 GLR 172, Sarkodee J held as follows, “The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section… Subsection (3) contains an important provision which brings into focus the general scheme of the Act, which is to encourage reconciliation as far as may be practicable. Thus section 8 enjoins the petitioner or his counsel to inform the court of all attempts made to effect a reconciliation and gives the court power to adjourn the proceedings at any stage to enable attempts at reconciliation to be made if there is a reasonable possibility of reconciliation. It is, however, wrong, in my view, to say that proof of total breakdown of the marriage and the possibility of reconciliation should be taken “disjunctively.” This, counsel for the respondent explained, meant that there is a burden to prove separately that the marriage has broken down and even when it is proved that it has broken down that there should be the further proof that it is beyond reconciliation. It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) of Act 367 a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the court’s power.” Respondent does not deny this claim of Petitioner. He also avers that the marriage has broken down beyond reconciliation and cross-petitions the court for dissolution of the marriage among others. Respondent’s failure to deny that attempts at reconciliation by family members, friends and elders have proved futile amounts to an admission of same. (see FORI v AYIREBI (1966) 1 GLR). Under section 2(1f) of Act 367, where parties after diligent efforts are unable to reconcile their differences, same suffices as breakdown of the marriage. From the evidence on record, parties have had differences since Respondent returned from London. The differences has at a point in time resulted in a criminal complaint lodged by Petitioner against Respondent leading to Respondent being asked to vacate the matrimonial home for sometime by the Police; subsequently, the Petitioner prior to the institution of this petition has forced Respondent out of the matrimonial home. The court therefore is satisfied that the marriage celebrated between the parties on 9th of December, 2000 has broken down beyond reconciliation. Judgment is therefore entered in favour of both Petitioner and Respondent on their first reliefs. It is hereby decree that the said marriage be and is dissolved today the 25th day of November, 2022. ISSUE 4- WHETHER OR NOT THE MATRIMONIAL HOME AND OTHER PROPERTIES ACQUIRED IN THE COURSE OF THE MARRIAGE ARE JOINTLY ACQUIRED PROPERTY OF THE PARTIES ISSUE 5- WHETHER OR NOT RESPONDENT IS ENTITLED TO A SHARE OF PROPERTIES ACQUIRED IN THE COURSE OF THE MARRIAGE I would discuss the two issues together as same is intertwined and requires the same analysis in respect of the various properties. Respondent contends that he solely sponsored Petitioner to travel to Holland and also sponsored Petitioner’s sister-in-law and as a return gesture, Petitioner supported his journey to London. According Respondent sometime in May 2003, he sent GB 2,000 who was at that time ordinarily resident in Holland to join him in the UK. Petitioner however returned home to regularize her documents and later told him she was desirous of establishing a business in used clothing and other items with the money he had sent her. He endorsed same and Petitioner went to Korea and imported secondhand clothing to Ghana. He contended that to save the young business, he sent Petitioner GB100 or more every month as maintenance through an account name Daniel Abaloo Gosciniak as he did not have regular documentation at the time. Respondent stated further that he sent Petitioner GB2000 to Petitioner upon Petitioner’s request to enable her import secondhand vehicles to Ghana and with his consent, Petitioner bought the an uncompleted 5 Bedroom House at Anyaa as well as the Hyundai Tucson vehicle with the proceeds of these businesses. Respondent contends further that he sent in excess of GB1200 to Petitioner to complete and furnish the Anyaa house to their taste and it became their matrimonial home. As the business grew, they expanded and opened a cold store at the Anyaa market which Petitioner is currently running. Respondent contended that with the proceeds of the business, Petitioner acquired the following properties in addition to the matrimonial home and the Hyundai Tucson SUV; a. One-acre land (Four plots) at Akwati Junction, off Kasoa Winneba Road; b. A mansion in Petitioner's home town, Hiamankyene, near Kete Krachi; c. A plot of land at Kasoa. Respondent therefore prayed the court for equitable share of the said properties. Petitioner vehemently denied Respondent sponsoring her travel to Holland. According to her, her brothers in Holland sponsored her trip and thereafter helped her facilitate Respondent’s travel to UK. She further denied Respondent sending her GB2,000. Petitioner contends that she was given a soft loan of $25,000 by her uncle and his wife and she added her savings to same to start her trade. PW1, the uncle of Petitioner testified in support of Petitioners evidence. He stated that he and his wife gave Petitioner a loan to start her business and has only repaid $5,000 out of an amount of $10,000. Article 22 (2) of the 1992 constitution of the Republic of Ghana provides “Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.” With a view to achieving the full realization of the rights referred in article 22 clause (2) of the 1992 constitution of Ghana which guarantees property rights of spouse, article 22 (3)(b) provides that Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. In Mensah v Mensah [1998- 99] SCGLR 350, the court applied the equality is equity principle to determine which proportions the couple’s joint property would be shared. Bamford-Addo JSC held at 355 thus: “… the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce;(emphasis mine) because the ordinary incidents of commerce has no application in marital relations between husband and wife who jointly acquired property during marriage.” This position of the law was further modified in the case of Mensah v Mensah (2012) SCGLR where Dotse JSC in delivering the unanimous decision of Supreme Court held “Why did the framers of the Constitution envisage a situation where spouses shall have equal access to property jointly acquired during marriage and also the principle of equitable distribution of assets acquired during marriage upon the dissolution of the marriage? We believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved. This is so because, it can safely be argued that, the acquisition of the properties was facilitated by the massive assistance that the other spouse derived from the other. In such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property, when it is ascertained that he or she did not make any substantial contributions thereof.” Parties do not dispute that all the properties were acquired during the subsistence of the marriage. Petitioner’s however dispute same being jointly acquired property and contends is that she acquired all these properties during the subsistence of the marriage without any contribution or support from Respondent and same is her solely acquired properties. In respect of the matrimonial home situate at Anyaa, Petitioner contends that the matrimonial home is her personal property and not a jointly acquired property of the parties. Respondent on the other hand contends that the said property was acquired from proceeds of the joint business of the parties. Petitioner however denied having any joint business with the Respondent and claim that she started the business whilst in Holland and prior to returning to Ghana and not going back abroad. Exhibit 2 tendered by Respondent disclose some remittance of sent to Petitioner. Counsel for Petitioner challenged exhibits 2 relating to Respondent herein. However, Petitioner under cross-examination admits that Respondent remitted Petitioner monthly for her upkeep during his stay in the UK. Respondent upon his return to Ghana from the UK upon Petitioner’s divorce threats lived in the matrimonial home with Petitioner and joined Petitioner in the running of her then business. Respondent lived in this said house from 2012 till 2020 when the Petitioner forcefully ejected him from the matrimonial home. In the latest Supreme Court case of PETER ADJEI vs. MARGARET ADJEI [2021] DLSC 10156, His Lordship Justice Appau delivering Majority decision held “We wish to emphasize that there is a reason behind the abandonment of the substantial contribution principle, which was hitherto used to determine the nature of property acquired during the subsistence of a marriage where it was established that only one spouse, particularly the male spouse, single-handedly did physically acquire the properties. It was buttressed on the understanding that the role of the wife in keeping the home by cooking for the family and preparing and performing other chores that enables the man to have a peace of mind to acquire the properties, is a form of contribution.” This presupposes that evidence of the type of contribution i.e financial or the spouse making that assertion must establish whatever services and support he or she may have contributed i.e domestic contribution to aid the acquisition of the said property. The Anyaa matrimonial home was acquired at a time parties were married. During this period, although Petitioner was working, Respondent whilst in the UK remitted her monthly, upon his return from UK, parties cohabited in the said house as their matrimonial property and jointly run the business Petitioner was involved in then together. These acts of the parties in the absence of evidence of exercise of sole ownership by Petitioner it can be inferred that Petitioner in acquiring the matrimonial home intended same to be a joint property of the parties. The court therefore finds that the Matrimonial home is a jointly acquired property of the parties. Considering the contribution of Respondent which aided Petitioner in acquiring the property the court declare the matrimonial home situate at Anyaa held by the parties in the ratio of 60:40 respectively. It is not in dispute that the other properties i.e plot of land at Kasoa, One acre land at Akwati Junction off Kasoa road, Mansion at Hiamankyene, near Kete Krachi and Hyundai Tucson vehicle were all acquired by Petitioner during the subsistence of the marriage. Respondent claim all these properties are jointly acquired properties of the marriage but Petitioner as mention supra vehemently deny these properties being a jointly acquired property of the parties. Petitioner contends that the land at Kasoa has been sold out to defray a debt long ago, the house at Hiamankyene acquired by her siblings and her for the burial of their mother, the one acre land belonging to her brother etc. Although these properties were acquired during the subsistence of the marriage, from the principle in the case of Peter Adjei vrs Margaret Adjei supra and with Petitioner’s denial of same being a jointly acquired property, Respondent assumed a burden of establishing his contribution be it monetary or domestic in their acquisition and same being a jointly acquired property. The law is that he who asserts must prove. Sections of 14 Evidence Act, 1975, NRCD 323 provides that “ Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. Section 17 (a) of NRCD 323 also provides that the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; In the case of Boakye v Asamoah & Anor. [1974] 1 GLR 38, Osei-Hwere J (as he then was) held that "if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative”. Petitioner having denied the said properties being a jointly acquired property, Respondent was saddled with the burden of establishing with cogent evidence that the said properties were acquired as jointly acquired properties. The mere repetition of this assertion on oath does not amount to sufficient proof of the said averment. Kpegah, JA. (as he then was) in the case of Zabrama vs Segbedzi [1991] 2 GLR 221 critically analysed the question of burden of proof in civil suits as stated in Mojalagbe vs Larbi & Others [1959] GLR 190. In Zabrama’s case, his Lordship stated that “the correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.” Respondent therefore fails to establish that the other properties acquired by Petitioner during the subsistence of the marriage were acquired as joint properties of the parties. Accordingly the court fails to find same as jointly acquired properties of the marriage. CONCLUSION From the analysis above, the court declares the said marriage celebrated bwteen the parties herein broken down beyond reconciliation and accordingly decrees same be and is dissolved today, the 25/11/22. The court further makes orders as follows; i. matrimonial home situate at Anyaa Market is declared the joint property of the parties held in the ratio 60:40 respectively. ii. The matrimonial home is order to be valued by an independent Valuer and Petitioner herein shall have the first option to buy out the Respondent out of the matrimonial home within 12 months from date of judgment. iii. In default, the matrimonial home is to be sold and proceeds shared in the ration of 60:40 between Petitioner and Respondent herein. iv. Parties to bear their respective cost. PETITIONER ABSENT REP BY BRIGHT KUMAH TSATSE (BROTHER) RESPONDENT PRESENT MR. GEORGE LOH FOR PETITIONER ABSENT EMMANUEL YEBOAH HOLDING BRIEF OF FLORA AGGREY- FYNN AMISSAH FOR R FOR RESPONDENT PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 4 15