Amoah Vrs Ewusie [2022] GHACC 203 (26 October 2022)

Godlove Amoah v John Kingsley Ewusie IN THE GENDER-BASED VIOLENCE CIRCUIT COURT, SEKONDI-W/R, HELD ON WEDNESDAY, 26TH OCTOBER 2022 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ..................................................................................................................................... C4/32/2021 GODLOVE AMOAH PETITIONER v JOHN KINGSLEY EWUSIE RESPONDENT ..................................................................................................................................... PARTIES: PRESENT C/PETITIONER: EDMUND ACQUAAH-ARHIN, Esq. C/RESP.: VICTOR OWUSU, Esq. ..................................................................................................................................... JUDGMENT The main ground for Petitioner’s claim for a dissolution of her marriage to Respondent was adultery, which corollaries were termed as misunderstandings, refusal to maintain Petitioner because she refused to consent to Respondent performing customary marriage rites for his co-adulterer, despite the existence of their ordinance marriage, birthing two children out of wedlock, etc. Petitioner pleaded that Respondent’s actions had caused her anxiety, distress, humiliation and such embarrassment that she cannot be expected to continue living with him. She prayed the Court that upon dissolution of the marriage, orders granting her custody of the children, provision of accommodation for the children, 50% shares respectively of the two houses at Kwesi Pra, Cape Coast and 2 vehicles used Page 1 of 14 Godlove Amoah v John Kingsley Ewusie for commercial and family purposes be made in her favour. In addition, orders for the payment of 6 years’ maintenance arrears estimated at GHC21, 600 at GHC300 per month for Respondent be granted her. Orders for GHC600 monthly maintenance for their two children be made, payment of their school fees, provide or pay for health care as well as basic necessities for their care. Finally, that Respondent be ordered to pay alimony/compensation of GHC50, 000. In his Pleadings, Respondent consented to the grant of divorce and admitted that the marriage has indeed broken down but due to Petitioner’s unreasonable behavior. These were listed as paragraph 7 of his Answer as “ … attitude and some utterance of the Petitioner …” According to Respondent, as a result of Petitioner’s behavior, he had stopped eating her meals out of fear of being poisoned. Respondent said he sleeps in a separate bedroom from his wife and that there was minimal communication between them. In his opinion, her family’s interference into their matrimonial affairs has been pivotal in the breakdown of the marriage and Petitioner was to blame because she permitted such interferences. In paragraph 3 of his Answer, Respondent admitted that he and Petitioner have not lived as husband and wife for the past 3 years. On the allegation of adultery, Respondent was mute both in his Answer and EIC. Under Cross Examination, counsel for Petitioner surprisingly did not question Respondent on this allegation. With respect to the disputed property in Cape Coast Respondent stated in paragraph 11 of his Answer that he acquired the land in 1998 and started construction in that same year. Under cross examination, he admitted customarily marrying Petitioner in December 1998 but that a year prior in 1997, he bought the land before their customary marriage ceremony in December 1998. In another breath, Respondent testified that he sent the money for the acquisition of the land to his sister in 1998 while he was in India. However, Resp. failed to attach a copy of an indenture because according to him, it took quite some time to procure an indenture from the Lands Commission, Cape Coast which Page 2 of 14 Godlove Amoah v John Kingsley Ewusie at the time was under the Western Regional office. Meanwhile, in his EIC, he testified that he did not have title deeds to the land because he was yet to complete processing of same. I find that Respondent was inconsistent on when he bought the land, strenuously maintaining that he acquired it before marriage and single-handedly constructed the building thereon without any contribution, financial or otherwise, from Petitioner. At the conclusion of hearing, the matters for determination were: 1. Whether or not Petitioner proved the grounds on the basis of which she wants a dissolution of the marriage 2. Whether or not the disputed house at Kwesi Prah, Cape Coast and two vehicles mentioned were matrimonial property 3. Whether or not Petitioner was entitled to the ancillary reliefs in her amended petition ISSUE 1 S. 2(1)(b) of the Matrimonial Causes Act, 1971 (Act 367) provides that a petition may be granted should a petitioner prove that ‘the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’. Under clause (b) of s. 2(1) of Act 367, a Petitioner has the duty to prove both the conduct allegedly constituting unreasonable behaviour on the part of the Respondent and also prove the fact that she cannot reasonably be expected to live with the spouse as a result of the bad behaviour. This is because not all behaviours will amount to unreasonable behavior as noted by Mrs. Frederica Ahwireng-Obeng, in her book “Contemporary Principles of Family Law in Ghana” where she distinguished, relying on the English law definition of the concept of ‘unreasonable behavior’ that noted that; “the conduct must be grave and weighty and must make living together impossible. It must be serious and higher than Page 3 of 14 Godlove Amoah v John Kingsley Ewusie the normal wear and tear of married life”. This notwithstanding, the law treats each case on its merit and thus makes concession to the fact that a behavior that may be petty in one circumstance, may be grave and weighty in another, necessitating proof by a petitioner of the effects of the said unreasonable behavior on him/her. In the case of Priscilla Nimako Kledo v Mawuli Kledo [High Court BDMC 366/2015 delivered on 27/02/2017] the Court referred to Mensah v Mensah [1972] 2 GLR 198 where the principle that ‘mere trivialities’ will not suffice the provision of s. 2(1)(b) of Act 367 was reiterated. In the Kledo case above, the Court found that petitioner failed to adduce evidence in proof of her claims rather, merely repeating her repeating her Pleadings. Similarly, in the instant case I find that Petitioner failed to prove her allegations of unreasonable behavior as required by sections 10(1) & 11(1) of NRCD 323 and in the case of Zabrama v Segbedzi (1991) 2GLR 221. In paragraph 7 of her EIC and earlier stated in her Pleadings, Petitioner testified that ‘there has been a persistent misunderstanding between my husband and my good-self such that my husband has been inconsiderate, insolent and disrespectful towards me for more than six (6) years. No particulars of the said misunderstanding were given and it cannot be the duty of the Court to guess what that misunderstanding was. I also reject the allegation that Respondent was irresponsible towards the care and maintenance of Petitioner and their children as the evidence on record, particularly answers of Petitioner on the subject, cannot support such a finding. Indeed, it was established that Respondent, personally and through benefits he was entitled to at work, provided accommodation, paid for domestic utilities, paid for their children’s school fees, food and basic necessities, medical care, etc. Reference page 13 of the Record of Proceedings (ROP). I equally dismiss the bare allegations of unreasonable behavior alleged against Petitioner by Respondent. My decision is based on sections 11(1) & 17(1) of the Evidence Decree, 1975 (NRCD 323) which requires a party to “introduce sufficient evidence to avoid a ruling against him on the issue” and places both burdens of persuasion and of producing evidence Page 4 of 14 Godlove Amoah v John Kingsley Ewusie on the party “against whom a finding on the fact would be required in the absence of further proof”. See the cases of Fosua & Adu Poku v Dufie (Dec’d) & Adu Poku-Mensah [2009] SCGLR 310 and Enekwa & Ors v KNUST [2009]SCGLR 242@348 which held that a person who asserts carries the burden of proof. The second ground for her prayer for dissolution of her marriage was adultery. According to Petitioner, Respondent was in an ongoing extramarital affair with one Freda Quarshie for the past 6 years and fathered 2 children with her as well. Her claim was supported with Exhs. B, B1 & B2, 3 pictures of the alleged children of Respondent and the said Freda Quashie. As earlier stated, Respondent completely avoided the allegation of adultery. Similarly, Counsel for Petitioner did not cross examine Respondent on the subject, likewise Counsel for Respondent when it was his turn to cross examine the Petitioner. On the authorities of Abdul Rahman v Baba Ladi; Civil Appeal No. J4/36/2013, 29th July 2013 and Fori v Ayirebi [1966] GLR 627, save the express denials made in his Answer, Respondent is deemed to have admitted the salient averment that he has been committing adultery with Freda Quarshie and fathered 2 children by her. I have averted my mind to the cases of Ghana Ports & Harbours Authority & Anor. v Nova Complex Ltd. [2007-2008] GLR. 806, Wiafe v Kom [1973] GLR 240 and Gyan alias Amoah & Anor. v Dabrah [1974] 2GLR 318 and find them inapplicable in the instant case because Respondent is not illiterate and was ably represented by counsel. In holding 1 of Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882, their Lordships of the SC noted that: “the law is well-settled that where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court”. Based on the foregoing, I find that adultery has been proved Page 5 of 14 Godlove Amoah v John Kingsley Ewusie Thirdly, it was undisputed that despite the parties living together at the Naval Quarters, Sekondi, Petitioner was literally living by herself, together with Respondent’s ‘ghost’ while his body and soul was elsewhere. Both parties testified that there has not been intimacy between them for more than 5 years, with Respondent testifying that he had stopped eating Petitioner’s meals and having meaningful communication with Petitioner. In the case of Addo v Addo [1973] 2GLR 103 the parties lived in the same house but carried on their lives and activities separately and run two very distinct households within the same compound. In the instant case, Petitioner testified that she and Respondent had not had sexual intercourse for 6 years and that he preferred having sex with his paramour, eating her food and sleeping over at her house in Sekondi. The testimonies of both parties show a broken home where Respondent acts as an accountant/financier while Petitioner provides primary care to their children. The shell of a marriage remaining is not worth keeping as Respondent abandoned the home years ago, neither party provides succor for the other, marital obligations such as cooking, washing, parenting, etc., has ceased and thus I hold that, under the circumstances, the parties have not lived as husband and wife for 5 years thus satisfying s. 2(1)(d) & (e) of Act 367. The parties cannot be said to be married to each other just because Petitioner continues to live in the matrimonial home with their two children under a certificate issued in December 2012 (Reference Exh. A, copy of the marriage certificate). ISSUE 2 The properties in dispute are a 4-bedroom house on a 200×100 feet plot of land at Kwesi Prah, Cape Coast and two vehicles, one private and the other commercial. Petitioner argued the land and house thereon was a matrimonial property because it was purchased in 1998 when they were customarily married as evidenced by the document titled “DECLARATION BY OFFICERS/MEN OF THE GHANA ARMED FORCES AS EVIDENCE OF MARRIAGE UNDER CUSTOMARY LAW” executed by Respondent which shows that Page 6 of 14 Godlove Amoah v John Kingsley Ewusie parties were married on 26/12/1998. Although this document was wrongly attached to the Reply, the Court cannot ignore same because it is on record. Petitioner admitted that Respondent solely financed the purchase of the land at Cape Coast which was facilitated by his sister on his behalf and the construction supervised by his brother (RW1- Christopher Ewusie) with monies sent through Sophia Blankson, Respondent’s sister through whom he sent the money for the purchase of the land. From these sets of facts, the germane preliminary issues to determine are whether having been purchased during their customary marriage, later converted into an ordinance marriage in 2012, the principles applicable to distribution of property applies to properties acquired during a customary marriage? Secondly, whether being solely funded by Respondent during the subsistence of the (customary) marriage makes same his personal property to the exclusion of Petitioner merely because she may not have contributed financially to its acquisition? In the very recent case of Gifty Esinam Adjei v Daniel Akpor Adjei [2022] DLSC 11698, with facts similar to the instant case, the husband appellant appealed against the judgment of the High Court which was affirmed by the Court of Appeal granting an equal share of the matrimonial property to the wife respondent on the basis that he acquired the property before their ordinance marriage and secondly, that being a mason he singularly constructed the property in dispute. On appeal, the SC affirmed the findings of both the trial court and appellate court, i.e., that the parties were married for 16 years before the marriage was converted into an ordinance marriage in 2012 and on the facts, the property had been acquired during the marriage, i.e., the customary marriage as well as the ordinance. The court relied on s. 20 of Act 367 and Art. 22(2) & (3) of the Constitution, 1992 to hold that despite being a matrimonial property, the evidence showed that the appellant had contributed substantially more than the respondent and so varied the trial court’s orders of “equal’ or 50/50 distribution to “equitable” Page 7 of 14 Godlove Amoah v John Kingsley Ewusie distribution by awarding respondent a share commensurate to her input. The SC referred to its own decision in Gladys Mensah v Stephen Mensah [2013] SCGLR 391 where it determined that the use of the “Jurisprudence of Equality” principle was the commonsensical way to go because one partner must not be ill-treated and bruised because he/she failed to contribute financially although he/she was the party that took care of the home, children and generally created a congenial atmosphere for the other partner to build a career or work. As at December 1998, there was an existing marriage and although its incidents were different from that of the converted ordinance marriage, I hold that these incidents were specific to its potentially polygamous nature and not as to definition and distribution of any property acquired during its subsistence because holding otherwise would be contrary to Art. 22(3) of the Constitution, 1992 which enjoins equal access to and distribution of property jointly acquired in marriage, with no distinction made as to what type of marriage. I also hold that on the authority of s. 41 of Act 367, the instant petition invoked the jurisdiction of this Court to determine issues arising from both the customary marriage, as it was, and the ordinance marriage. On the first preliminary question, I find support in the case of Peter Adjei v Margaret Adjei (Civil Appeal No. J4/06/2021 delivered on 21/04/2021) and the very recent Gifty Esinam Adjei v Daniel Akpor Adjei decided that the rules of distribution are applicable to property acquired in a customary, Mohammedan or Ordinance marriage. I daresay that from the authorities, a fine line is not created when a conversion takes place from one kind of marriage to another. Rather, it is a continuation of a marriage which only changes in nomenclature, not substance. On the second preliminary question, the law was expanded in the Adjei v Adjei case above which traced the development of the law on distribution of matrimonial property from the cases of Mensah v Mensah [2012] 1SCGLR 391 and Arthur (No. 1) v Arthur (No. 1) [Civil Appeal No. JA/19/2013 dated 26/07/2013 and emphasized that the concept that a Page 8 of 14 Godlove Amoah v John Kingsley Ewusie property was jointly acquired by both parties so long as it was within the subsistence of the marriage was only a presumption (emphasis mine) which may be rebutted with credible evidence, failing which the presumption stands. The dictum of HL Pwamang JSC, who delivered the lead judgment is reproduced below: “The combined effect of the …… ref. to supra is that; any property that is acquired during the subsistence of a marriage be it customary or under the English or Mohammadan 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 – (see Arthur v Arthur holding 3 @ page 546). What this means in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a 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 property that has been shown from the evidence adduced during trial, to have been jointly acquired, irrespective of whether or not there was direct, 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”. So, where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v Fynn (Civil Appeal No. J4/28/2013 dated 12/02/2014, the presumption theory of joint acquisition collapses” In this instance, it was undisputed that Respondent sent the money for the purchase of the land and initial construction while he was in India. Respondent’s contribution, by her own evidence was in providing the window and door frames of the house. Reference Page 19 of the ROP. The weight of this piece of evidence is to show contribution, even if minimal, to the house at Cape Coast. The presumption of ‘jointly acquired property’ applies so long as the property was acquired during the subsistence of the marriage and Petitioner was able to establish that as at the time of purchasing the land and constructing Page 9 of 14 Godlove Amoah v John Kingsley Ewusie the house, the parties were customarily married. Respondent failed to give evidence to the contrary that as at the time he purchased the plot of land, he was not yet married to Petitioner. Stating under oath that he purchased the land in 1997 or early 1998 before he and Petitioner were married falls short of providing sufficient and persuasive evidence as required by s. 11 of NRCD 323. See the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors. [2003-2004] SCGLR 400, 425-426 on the import of s. 11(1) of NRCD 323 which is that even though a Plaintiff carries the burden to prove his/her claims and Defendant does not, in a civil suit where an issue or fact is in dispute, a Defendant who adduces no evidence before the Court runs the risk of leaving a court with no option than to use only the evidence of the plaintiff. It is also trite that where a matter in issue is capable of proof by some material means, such as documentary or other corporeal means, a party’s interest will best be served if he/she produced such piece of evidence failing which a ruling will go against him. Respondent failed to produce any document, be it an indenture, a receipt of purchase, etc., to establish the date of purchase of the land on which the house was built. I find his explanation of why he failed to tender that material piece of evidence to support his assertion untenable. Equally, I find that the testimony of RW1 affirmed that he supervised construction of the building and its financier, not the time or year of the purchase of the land and building thereon. It was not the duty of the Court to presume or make inferences on his behalf in this respect. I further find the submission by Respondent that he had gifted a half portion of the land at Cape Coast to his family preposterous when no evidence at all was adduced to support his claim. Indeed, it is obvious this argument is merely a convenient attempt to divest the property and deny Petitioner of interest she may have in it. Petitioner admitted that Respondent, from his own resources, bought her a 2020- registered car which she used privately. For his personal use, Respondent also has a similar car as Petitioner leaving the commercial vehicle in dispute. Having made Page 10 of 14 Godlove Amoah v John Kingsley Ewusie provision for her automobile mobility, it is my considered opinion that on the facts, it is fair to maintain the status quo because as has been established, admitted by Petitioner too, the commercial vehicle was singularly bought by Respondent and at all material times has been under his control exclusively without an expressed or intended interest to be given to Petitioner. Reference the Adjei v Adjei case (supra). ISSUE 3 s. 16 of Act 367 provides that “either party to a marriage may petition the court for an order for maintenance on the ground that the other party to the marriage has willfully neglected to provide, or to make a proper contribution towards, reasonable maintenance for the petitioner or any child of the household”. In this regard, Petitioner prayed that Respondent be compelled to pay maintenance arrears for her upkeep for the past six years. On the contrary, I find on the evidence that Respondent provided accommodation, paid for utilities, paid the children’s fees, paid monthly maintenance for the children and Respondent. Despite their differences, Respondent provided for the basic necessaries of life and health for Respondent and their children and I find that a claim for maintenance arrears, separately and distinct for herself, is unsupported. Sections 19 & 20 of Act 367 gives a Court the authority to award maintenance or make financial provision for a spouse taking into consideration factors such as the “standard of living of the parties and their circumstances”. It is on record that Petitioner has been engaged sporadically in formal and informal employment in the course of the marriage, although her earning capacity has been low. Petitioner admitted that she was currently employed with a quarry company earning a meager salary as an Accounts Clerk. Bearing in mind that the parties’ standard of living has largely been borne by Respondent, with Petitioner providing primary care for the home and children, affecting her prospects for higher employments, I find that a lump sum of money to support and sustain her post- Page 11 of 14 Godlove Amoah v John Kingsley Ewusie divorce is fair. Respondent’s argument that Petitioner was working and so not entitled to financial award, after 24 years of marriage decidedly terminated due to his actions, is rejected as unfair and unjust. Finally, Respondent alleged that Petitioner was building a house in Cape Coast BUT failed to give a shred of EVIDENCE. In the recent case of Linda Akoto v Bright Kwasi Manu (Civil Appeal No. J4/30/2021 delivered on 26/01/2022) the Supreme Court held that where a party makes an allegation and fails to give evidence on it, the evidence of the other party, without more, will be accepted by the court, especially if it were the only evidence on the matter on record. Saying that Petitioner had an uncompleted house in Cape Coast and failing to prove same leaves this Court in no doubt that it is a fishing expedition and an attempt at equalization by Respondent. DECISION Being satisfied with the evidence adduced, the petition for divorce is granted on the finding that the marriage between the parties has broken down beyond reconciliation on the basis of section 2(1) (a), (d) & (e) of Act 367. I proceed under s. 42 (1) (b) of the Courts Act, 1993 (Act 459) to decree that the Ordinance Marriage between Godlove Amoah and John Kingsley Ewusie celebrated on 15/12/2012 at the Sekondi-Takoradi Metropolitan Assembly, Western region is dissolved and a certificate of divorce shall issue to that effect. CUSTODY Custody of Emmanuel Ewusie (17 years) and Alexander Ewusie (12 years) is granted to Petitioner, with reasonable access to Respondent. MAINTENANCE & OTHERS Page 12 of 14 Godlove Amoah v John Kingsley Ewusie With Petitioner having custody and the attendant day-to-day expenses of taking care of children in prevailing economic times, at their present ages, Respondent is ordered to pay monthly maintenance of GHC1, 500 for the upkeep of the two children, effective October 2022. Considering interest and inflation rates, the amount of GHC1, 500 shall be reviewed upwards at 20% annually, effective December 2023. Respondent is ordered to fully pay for the school fees of both children till completion of their respective tertiary education. Petitioner shall bear all other education-related expenses including stationery, school uniforms, casual & ceremonial clothing, transportation, extracurricular activities and incidentals. Respondent shall provide suitable accommodation for the two children commensurate to what they are used to at the Naval Base Sekondi, or better. Medical care for the children shall be borne by the Respondent FINANCIAL SETTLEMENT It is ordered that Respondent shall pay to Petitioner an amount of GHC10, 000 as financial settlement. In accordance with s. 20(2) of Act 367, the lump shall be paid in gross or in 10 instalments. PROPERTY DISTRIBUTION On equitable principles, the two buildings on the 200×100 feet land located at Kwesi Prah, Cape Coast in the Central Region shall be distributed in a one third (1/3) ratio in favour of Petitioner and Respondent. Alternatively, the property shall be valued, at Page 13 of 14 Godlove Amoah v John Kingsley Ewusie Respondent’s cost by a Government Valuer, and the portion settled in Petitioner’s favour bought out by the Respondent. The claim for distribution of the two vehicles; a Toyota Corolla with registration number CR 481-20 and commercial van is dismissed. Costs of GHC2, 000 awarded in favour of Petitioner. .................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 14 of 14