Osei Vrs Boateng [2022] GHADC 107 (31 December 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT KOFORIDUA THIS MONDAY THE 31ST DAY OF OCTOBER, 2022 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH SUIT NO: A4/68/21 CLEMENTINA KONADU OSEI OF JU/C92, JUMAPO, KOFORIDUA VRS GODWIN BOATENG OF OYOKO - KOFORIDUA --------------------------------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------------------------- The parties herein married under the Marriages Act, 1884 CAP 127 on 4th February, 2014 at the District Court, Koforidua and have one issue to the marriage. After the marriage the parties co-habited at Oyoko until the petitioner left the matrimonial home somewhere in 2021 and subsequently filed the present petition on 25/06/21 seeking the following reliefs: a) An order granting the dissolution of the marriage under the ordinance between the Petitioner and the Respondent. b) An order directed at the Respondent to pay maintenance for the child of the marriage amounting to GHS 500.00 per month c) An order directed at the Respondent to pay the school fees and all educational expenses of the child of the marriage d) An order granting custody of the child of the marriage to the Petitioner with reasonable access to the Respondent e) An order settling the matrimonial home on the petitioner or in the alternative the sharing of the house 90-10 in favour of the Petitioner f) An order for the payment of GHS 30,000.00 as alimony or compensation. g) An order for the respondent to pay arrears of maintenance of GHS 3,000.00 to the petitioner and the child. Subsequent to the service of the Petition on the Respondent, he filed an Answer and Cross-Petition through his lawyer, Henry Sangmor Esq on 05/08/21 denying most of the averments in the Petition and Cross petitioned for the following reliefs; i. A grant of the matrimonial home at Oyoko to the Respondent ii. A grant of the matrimonial home at Akyem Asafo to the Petitioner iii. iv. Lump sum compensation in lieu of fees and financial support to the Petitioner In the alternative to (i) and (ii) a half share of the said properties in obtaining her Degree Certificate. This Court, differently constituted, on the 5/8/21 ordered the parties to file their respective Witness Statements. It is evident that the Petitioner filed her Witness Statements on 7/10/21 and from the Record of Proceedings, from the 11/10/21 till the 29/04/22, this Court granted several prayers for leave at the behest of Respondent to file his Witness Statement yet he refused to do so. Justice delayed is justice denied therefore, on the 29/4/22, the court commenced the trial as the case had already been set down for trial earlier. Counsel for Respondent, on that day, made an oral application to withdraw his representation of the Respondent to which the Court ordered him to come formally but at present, there is nothing on the record to reflect same. Neither the Petitioner nor the Petitioner’s Witness was cross examined by the Respondent which led to the closure of her case and considering that the Respondent had not filed any Witness Statement before the Court, the Court adjourned the case for judgment. Order 18 rule 3(3) of C. I 59 provides that; A written statement shall contain all the material facts which the party presenting the written statement relies on, but not the evidence by which those facts are to be proved, and the statement shall be divided into paragraphs numbered consecutively with each paragraph containing, as nearly as may be, a separate allegation. Considering that written statements; i.e pleadings contain facts which need to proven in evidence, I find the dictum of BENIN JSC in the case of OFORI AGYEKUM v MADAM AKUA BIO CIVIL APPEAL NO. J4/59/2014 to be apposite. He stated thus; “Be that as it may, where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader; the court does not call it into question in its judgment. The court’s only duty is to consider the evidence the party has proffered in determining whether or not he has met the required standard of proof.” On the strength of this case, this Court is right to conclude that by the Respondent’s failure to adduce any evidence on the facts in his Answer, the Court treats the Answer as abandoned. Now in the absence of any evidence to prove the cross petition filed by the Respondent, it is accordingly dismissed. Now, in the absence of any cross examination of the Petitioner, ipso facto the Petitioner’s evidence not being controverted in any way, the court deems same as being admitted by the Respondent. Having come to this conclusion, the court shall proceed to determine in seriatim the reliefs sought by the Petitioner. An order granting the dissolution of the marriage under the ordinance between the Petitioner and the Respondent The law in respect of dissolution of marriages in Ghana has been spelt out under the MATRIMONIAL CAUSES ACT, 1971 (ACT 367). Section 1(2) of the Act 367 provides that; (2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2 of the Matrimonial Causes Act, 1971, Act (Act 367) provides 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 factors: (a) that the Respondent has committed adultery and that by that 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 together as man and wife for a continuous period for at least two years preceding the presentation of the petition and the Respondent consents to the decree of divorce provided such consent shall not be unreasonably withheld and where the court is satisfied that it has so been withheld, the court may grant petition for divorce under this paragraph notwithstanding the refusal. (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; or (f) That the parties to the marriage have, after diligent efforts been unable to reconcile their differences. 2) On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. (3) Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation. In essence, before the Court will go ahead to dissolve any ordinance marriage, it must be proven that the marriage has broken down beyond reconciliation. In meeting this threshold, there must be proof that any of the conditions stipulated under section 2 of Act 367 were met. Juxtaposing these statutory provisions with the peculiar facts of the instant case, the Petitioner bears the burden of proof regarding the claim of unreasonable behavior as provided for under Section 2(1)(b). William Offei in his book, FAMILY LAW IN GHANA, 5th Edition, page 196 propounds that unreasonable behavior is analogous to cruelty and he cites, Rayden’s definition as “legal cruelty may be defined as conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. “To obtain a divorce on the ground or cruelty it must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure and that misconduct had caused injury to the health of the other party”. At the trial the petitioner gave evidence on her own behalf but called no witnesses, the respondent did not cross-examine her. The respondent did not give any evidence. The question which arises is whether the court in finally considering the evidence is bound to accept the case of the petitioner which in the circumstances stands uncontradicted by evidence from the respondent. Section 2 (2) of the Matrimonial Causes Act, 1971, imposes on the court the duty to inquire, so far as is reasonable, into the facts alleged by the parties and this inquiry which may reveal doubts if any in the case. Does this mean that the court should hold an inquest in all cases? ……I do not think that where the respondent has refused to tender evidence in support of the facts alleged by him in the answer it would be reasonable in all cases to expect the court to conduct an inquest, unless there is reasonable ground to suspect that such an inquest is likely to show that the evidence adduced by the parties is false or perjured. I have no reason to suspect that any part of the petitioner's evidence is false or that the true position has been hidden from the court. I shall therefore not hold an inquest. See MENSAH v MENSAH [1972] 2GLR 198 The Petitioner states in her Witness statement that the Respondent subjected her to a series of physical and verbal abuse when the Respondent knew so well that she suffers from spinal problems amidst other claims of instances of certain utterances by the Respondent which she cannot reasonably be expected to live with. The petitioner bears both the burden of proof as well as the persuasive burden. The petitioner can discharge this burden on the preponderance of probabilities by establishing that belief in the mind of this court that what she asserts is more probable than its non existence. The evidence by the petitioner that the respondent physically and verbally abused her was not denied by the respondent. It is trite that when the evidence of a party is not challenged or admitted by the opponent, he does not need to adduce further evidence. The court therefore finds that the respondent physically and verbally abused her amidst other claims listed in her witness statement. On that basis, the Court is of the opinion that the Petitioner cannot be expected to reasonably live with Respondent and in the light of broken attempts at settlement, the court hereby grants this relief and dissolves the marriage and accordingly cancels the certificate with number DC 41/14 issued thereof. I shall consider reliefs b, c and d together as it concerns the child of the marriage; Roland Boateng. Considering the fact that the child has since the time of separation of the parties been with the Petitioner and coupled with his age, the Court hereby grants custody of the child to the Petitioner herein with reasonable access to the Respondent. The Court further grants reliefs b and c. An order settling the matrimonial home on the petitioner or in the alternative the sharing of the house 90-10 in favour of the Petitioner The Petitioner in her evidence sought to convince the court that she was the one who fully funded the purchase of the plot of land at Oyoko as well as the construction work thereof save for the tiling work done by the Respondent and Petitioner claims that she even provided the materials for same. The Petitioner in paragraphs 19,20 and 21 of her Witness Statement adduced evidence regarding the processes leading to the purchase of the plot of land at Oyoko. The Petitioner indicated that she was the one who applied for a loan of 6000gh in 2014 for the Respondent to purchase the Opel Astra taxi cab. She exhibited a copy of the account ledger with her name which indicates the said amount. The Exhibit indicated that Petitioner acquired the loan on 14/03/14 and Exhibit A, the vehicle receipt also indicates that the vehicle was acquired on 17/03/14. Despite the fact that the receipt, Exhibit A, bears the name of the Respondent, no evidence was preferred by the Respondent to counter this assertion by Petitioner therefore the court finds that the Petitioner’s claim is more probable. In addition, the Petitioner indicated that in 2017, they sold the taxi for GHS 4,000.00 and she acquired another loan of GHS 6,000.00 from the teacher’s fund from which she gave an amount of GHS 5,000.00 to the Respondent to add to the GHS 4,000.00 making it a total of GHS 9000 which was used to acquire the land. Again, the Petitioner tendered in evidence Exh B1 which is her loan statement from the Teachers Fund indicating that the loan was taken on 30/9/2017 and the receipt of the land is dated 3/11/2017. Despite all these pieces of evidence adduced by the Petitioner claiming to be the sole sponsor of the plot of land, Exhibit B shows that both the Respondent and the Petitioner were the vendees. What then is the legal implication of this? The legal position was clearly stated by Eyre C. B. in Dyer v. Dyer (1788) 2 Cox Eq. Cas. 92 at p. 93. The learned Chief Baron said: “The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.” It is the law that: “If the advance of the purchase-money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made; for such evidence in effect shows that the nominal purchaser was really the agent of the true purchaser, a purpose for which parol evidence is always admissible.” See Snell’s Principles of Equity (26th ed.), p. 192 and HEARD V. PILLEY (1869) 4 CH. APP. 548. The parol evidence admitted in this case clearly establishes that even though the Petitioner and the Respondent are shown by the Exh B to be co-owners, the real purchaser and builder of the property was the Petitioner who advanced the moneys used in buying the plot and constructing the house. This resulting trust will not however arise if it is established that the real purchaser intended a gift to the nominal purchaser. No advancement can be presumed in such cases; there must be evidence, direct or circumstantial that a gift was intended by the wife to the husband. In this case both the husband and the wife agree that whatever was the source of the funds used in purchasing the properties, there was no intention of benefiting the husband by way of gift. If the Petitioner’s case is accepted, then a resulting trust arises in favour of the Petitioner for where X purchases property (real or personal) and pays the purchase money, but instead of requiring the vendor to convey the property either to Y alone or to himself (X), takes the conveyance in the joint names of himself and Y, equity will presume that the intention was that X and Y were to be trustees for X. As I said this presumption can be rebutted; in this case however I am satisfied that the Respondent has not rebutted the presumption that he and the Petitioner are presumed to hold the properties in dispute as trustees for the Petitioner, who as I have found, is the real purchaser. I may mention in passing that even if I had found that the real purchaser was the Respondent, I would still have found a resulting trust in favour of the Petitioner by applying the presumption of advancement. See the case of REINDORF ALIAS SACKER v. REINDORF [1974] 2 GLR 38 Having found that the Petitioner is the real purchaser of the plot of land, I declare her to be the legal and beneficial owner of same. Indeed, the general common law principle is quid quid plantatur solo solo cedit , he who owns the land owns everything found on it including buildings. However, considering that the Petitioner herself sought for 90-10 percentage sharing, the Court shall grant that much specifically because the Petitioner was unable to prove specifically her contribution to the construction. Considering the evidence led by the Petitioner and the extent of unreasonable behavior exhibited towards her without same being denied, the court awards financial provision of GH₵ 20,000.00 in favour of the Petitioner. In respect of the last relief, the court grants same based on the evidence led by the Petitioner to the effect that she has been the one solely catering for the child since time immemorial. In fine, the Court makes the following orders: 1. Dissolution of the marriage contracted between the parties on 26/09/2009 at the Church of Pentecost, Ebenezer Assembly, Effiduase-Koforidua. 2. That the matrimonial property at Oyoko which is a Joint property be distributed on the ratio of 90:10 in favour of Petitioner. 3. Custody of the child be granted to the Petitioner with reasonable access to the Respondent. 4. The Respondent is to pay monthly maintenance of GH₵500.00 for the upkeep of the child as well as the educational expenses. 5. Respondent to pay financial provision of GH₵20,000.00 to Petitioner. There will be no order as to costs. SGD NANA AMA DABBAH FYNN NKANSAH MAGISTRATE 8