Tetteh Vrs Tetteh [2022] GHADC 134 (3 November 2022)

1 IN THE DISTRICT COURT HELD AT SOMANYA ON THURSDAY THE 3RD DAY OF NOVEMBER 2022 BEFOIRE HIS WORSHIP MICHAEL DEREK OCLOO SUIT NO. A4/23/20 ESTHER DEDE MAWUKO TETTEH PETITIONER JOSEPH TETTEH RESPONDENT VRS PARTIES - PRESENT JUDGEMENT The petitioner commenced the instant action against the respondent for the following reliefs: 1. An order for dissolution of the marriage between her and the respondent 2. An order for the petitioner’s fair share of the matrimonial property 3. An order for a compensation of GHC20,000 4. An order for custody of the two children of the marriage and payment of GH400 monthly maintenance for the two children The petitioner stated in her petition that she is a hairdresser and the respondent is a teacher and that the marriage between them is ordinance in character. In her witness statement the petitioner stated that they entered into a concubinage relation in the year 2010 and co habited for two years after which the respondent performed the customary marriage rites. She added that they officially got married in November 2012 and the marriage has been blessed with two children namely Emmanuel Chewey Tetteh and Menyeyo Herthy Tetteh. She further stated that after the respondent had performed the marriage rites, he bought a building plot at Nuaso new town and the two of them planned together to put up a house on same as such the respondent bought trips of sand and bags of cement and engaged a block moulder to mould building blocks and instructed her (petitioner) to supervise the work and in the course of which she (petitioner) fetched water and cooked for the block moulder. She suspended her work at the salon to enable her execute the said assignment. She further added that after the building blocks were moulded a mason was engaged to put up the building during which she fetched water and cooked for the workers and rendered other valuable services till the building was completed and they moved into same as their matrimonial home on 5th January 2016. This was after they had stayed in rented premises from 2010 to 5th January 2016. They stayed in the matrimonial home for a short period when the respondent attitude changed towards her. The respondent started maltreating her and was finding fault with anything the petitioner did. He left the house at about 11pm and armed robbers came to the house and started pushing the metal gate to have access to the house so she called the respondent on phone but he did not pick and even switched off when it was persistent. The petitioner then called and informed her mother in law about the situation and shortly after that the police and some people came to their rescue and the armed robbers run away without causing any havoc. The respondent’s family resolved the matter when the petitioner reported same to them. One morning she was in the hall with the respondent when a male family brother by name Kobee called her phone and she put the phone on loudspeaker to enable the respondent to listen to the conversation. The caller Kobee said it was a long time he heard from the petitioner and asked about how she was faring. The respondent told her that she was having extra marital affairs with the caller and subjected her to beatings. This matter was settled by her family and petitioner was advised to delete Kobee’s number from her phone which she did. She further stated that they had an orchard and orange trees in the house but the respondent has instructed that the petitioner and the children of the marriage should sought for permission from him before plucking the fruits. According to the petitioner they normally keep a crate of eggs in the kitchen for meals and one day the respondent returned from town and entered the room and later came out and went out of the house and came back with her elder sister by name Elizabeth Tetteh. They both entered the room and invited the petitioner and showed her an egg placed on some books packed under a table and asked her about what she knew about the eggs. The petitioner told them she does not know anything about it and doesn’t even know when the egg was placed there. The respondent then stated that it was juju that the petitioner had placed under there against him and that his spiritual father had told him earlier that the petitioner had spiritually set him up to die through accident and that he (respondent) will see a sign in the house to confirm his prophecy so the said egg placed in the room is a fulfilment of the said prophecy by the spiritual father. Elizabeth Tetteh called the children and interrogated them and the boy stated that he picked the egg from the kitchen and placed it there for his personal use later. The respondent did not accept the boys (son’s confession) and insisted that it was juju the petitioner placed there against him. The respondent reported the issue to his family. The respondent’s family scheduled a meeting to address the issue. The petitioner was accompanied by three of her family members and her guardian. At the said meeting, the respondents made the following charges against the petitioner: 1. The petitioner has been flirting with other men and communicating with her boyfriend by name Redeemer Normenyo 2. That the petitioner does not seek permission from him before plucking fruits and harvesting plantain in the house 3. That the petitioner has put juju egg on his packed books under a table in his room. The petitioner informed the gathering that she harvested the plantain and gifted them to the respondent’s brother and plucked the fruits and consumed them with the children of the marriage. The couple (parties) were advised to live in peace and harmony. The respondent was not happy with the settlement so he resumed the maltreatment of the petitioner and told her to leave the matrimonial home in her own interest. Later she was informed by the uncle/guardian that the respondent had send a customary drink to her family to signify dissolution of the customary marriage. Later the respondent threw all her belongings outside as depicted in exhibit B series attached. In her supplementary witness statements the petitioner stated that Mr. Ogbesi Simon Tetteh is the legitimate guardian responsible for the affairs of the respondent and a member of the respondent’s family. Also Sipim Akutei aka Nene Adetsiror is a member of the respondent’s extended family and sipim of the community who normally leads members of the community as spokesman to perform rites and ceremonies such as marriages, funerals and others. Additionally she was in a relationship with the respondent before August 2010 when he bought the land and later performed the marriage rites in November 2012. As such the respondent’s claim that he put up the house before marrying her is false. She added that the respondent hosted her daughter from another man Faustina Tetteh from 2012 when she was in primary three until after he performed the marriage rites as a foster father and paid her school fees from p3 to p5 when he stopped and drove them out of the house. The respondent did not adopt Faustina Tetteh and the surname Tetteh is not the respondents name rather the name of the petitioner’s younger brother who fathered Faustina Tetteh as “yobi”. She added that it was her mother who prepared the metal container for her to operate a salon before she entered into the relationship with the respondent and that it was not the respondent who prepared it for her. They decided to move the metal container(salon) from Kodjonya to Nuaso and in the cause of that the roof got damaged and the respondent fixed it with the remainder of the aluminium sheets used to roof the house and paid GH240.00 as two years rent advance to the landowner at Nuaso where the container was placed. She added the respondent did not give her any cash of GH600.00. She also denied pilfering monies from the respondents pocket and flirting with other men and wondered how the respondent was able to record a conversation between her and the said Redeemer. She added that she never threatened the respondent and that several meetings were held to resolve the matter but the respondent took an entrenched stand and stated that he was no longer interested in the marriage. She concluded that she needs fifty percent of the properties acquired during the pendency of the marriage which includes the house (exhibit A) and an Opel Astra with registration number GW7024V. She initially intimated to the court that she will call a witness but changed her mind later so the petitioner did not call any witness and closed her case. In the witness statement of the respondent he stated that on 1st August 2010 he bought a parcel of land from Kweku Sabu, head and lawful representative of Kweku Sabu family at Nuaso and acquired the required documents as indicated by Exhibits JTO 2A 2B and 3. He then put up a three bedroom house containing a hall toilet, bath and kitchen and reserved a portion for future developments. He further stated that he entered into a relationship with the petitioner in the year 2012 and performed the marriage rites on 11th November 2012 through his uncle Sipim Akutei. He added that Ogbesi Simon Tetteh is his maternal uncle as he accompanied the family to perform the marriage rites in that capacity. He added that the petitioner had not given any assistance be it in the form of material or financial in putting up the house. According to the respondent, the petitioner brought her daughter Faustina Tetteh into the marriage and he adopted her as his daughter and enrolled her in a basic school and gave her the name Faustina Tetteh. He added that he put up a metal container and gave it to the petitioner. The metal container is marked in exhibit JTO7. He added that he gave GHc600.00 as gift to the petitioner in addition to the container. He added the petitioner has been pilfering money from his pocket and flirting with other man. He recorded a conversation between the petitioner and one of her numerous boyfriends Normernyo which he entered in evidence. According to the respondent, the petitioner and Redeemer started threatening him until the petitioner planted juju on his books in his room. He added that the petitioner exhibited treacherous conduct to the extent that he reported her to his family and both families held several meetings to resolve the matter but to no avail. He added that he sent the customary divorce drink to the petitioner’s family which was accepted and thereafter he gifted the metal container (salon) and cash of GH600.00 to the petitioner as customary divorce compensation. He concluded that the marriage between them is not ordinance marriage but customary marriage as such the petitioner is not entitled to the GH20, 000.00 compensation relief as demanded. The respondent cross-petitioned as follows: 1. An order for GH20, 000.00 compensatory damages for flirting with Redeemer Normenyo. 2. An order for the respondent to pay a monthly maintenance of GH300.00 for the two children. 3. An order for the respondent to continue paying the medical bills, school fees, and provision of school uniforms for the two children. He called WD1 Sipim Akutei who corroborated his evidence to the extent that the customary marriage rites was performed by the respondent. The legal issues for determination by the court are as follows; 1. Whether or not the marriage between the parties is customary marriage. 2. Whether or not the marriage has broken down beyond reconciliation. Section 2 of the Matrimonial Causes Act 1921(ACT 367) provides that for the purpose of showing that a marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: 2(1) (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. (d) that the parties to the Marriage have not lived as man and wife for a continuous period of about two years immediately preceding the presentation of the petition and the respondent consent to the grant of a decree of divorce. (f) That the parties to the marriage have after diligent effort, been unable to reconcile their differences. On page 23 of the third edition of the Family Law in Ghana by William E. Offei it is stated in terms of customary marriage as follows: “…the man approaches the woman parents or family. The woman’s parents or family agree to the marriage. The man makes a present or presents in cash or kind as required by the appropriate custom, to the woman’s parent or family, and the marriage is concluded.” The officers concerned with the celebration of marriage with reference to the marriage ordinance (CAP127) 1884(19951 REVISION) are registrars of marriage, marriage officers and principal registrar of marriages. It must be celebrated at an authorised place according to prescribed designation (place). It may be solemnized under the authority of a registrar’s certificate, marriage officer’s certificate or one such certificate when sufficient or a special license from the principal registrar of marriages. In the instant case the man and the woman used constitute customary marriage as the two families met and the customary rites were performed. The petitioner did not render any exhibit in terms of certificate of marriage to prove the claim that the, marriage was ordinance marriage. She also failed to lead any evidence to prove that the customary marriage was converted to ordinance marriage. The petitioner stated that the respondent started maltreating her when they moved into the matrimonial home and subjected her to beatings. With this behaviour the petitioner cannot reasonably be expected to live with the respondent. Evidence adduced during the hearing is indicating of the fact that there has been a misunderstanding between the parties which families of both parties have tried on several occasions to resolve but to no avail and as a consequence the respondent expressed his disinterest in the marriage and threw out the petitioners belongings and sacked her from the matrimonial home. The two parties currently stay at different places as such they have not lived as man and wife for a continuous period of about two years. Also the petitioner and the respondent have after diligent effort, been unable to reconcile their differences. In addition, the respondent has consented to the dissolution of the marriage in his witness statement and cross petition. It is necessary to describe the union or relationship that existed between the parties. Both parties stated that they were in a relationship in the year 2010 before the marriage rites were performed in 2012. The type of relation before the performance constitutes concubinage relation. In the case of PREMPEH V AGYEPONG (1993-1994) 1GLR 255(SC) it was held that concubinage is not the same as valid marriage. The relationship that existed between the parties in the instant case from the year 2010 to 2012 is therefore not a valid marriage but concubinage. With reference to cases of Clarke v Clarke (1981) GLR 583, Boafo v Boafo(2005-2006) SCGLR 705, Mensah v Mensah(2012) SCGLR 391 and Arthur (NO.1) V Arthur (NO. 1)(2013-2014) SCGLR 543, the issue of spousal property rights has always been based on a valid marriage. In Ghana customary marriage and ordinance marriage are recognized as valid marriages. By extension therefore the reliance of the petitioner on the concubinage relation to claim a share from the properties acquired during the pendency of the valid customary marriage is inappropriate. This means that the properties acquired during the pendency of the valid customary marriage cannot be subjected to a provision or requirement in the concubinage relation. The said properties were acquired during the pendency of the concubinage relation which the respondent solely acquired same without any assistance from the petitioner. This happened before the customary marriage rites were performed by the respondent. The claim for a fifty percent share of the properties acquired during the concubinage can therefore not be applicable in the instant case. It is also important to note that when the recording was played back in the presence of the parties it became clear that the said Redeemer Normenyo had a conversation with the petitioner and Redeemer threatened to deal with the respondent during an encounter between him and the respondent in the said recording. It is my finding that the marriage between the parties in the instant case is customary marriage and the house in issue was built during the concubinage relation. In addition the parties on their own did not lead any evidence to establish how and how much the Opel Astra was acquired. Assuming without claiming the same was acquired during the pendency of the valid customary marriage the petitioner did not lead any credible evidence to establish how much she paid to assist the respondent to purchase same. This would have enabled the court to apply the proportional contribution principle in the distribution of that property. In conclusion, I find that the marriage between the parties has broken beyond reconciliation. I therefore declare the customary marriage between Esther Dede Mawuko Tetteh herein referred to as the petitioner and Joseph Tetteh herein referred to as the respondent duly dissolved and order as follows: 1. The respondent shall pay a compensation of GH₵20,000.00 to the petitioner. 2. Custody of the children shall be granted to the petitioner with reasonable access granted to the respondent. 3. The respondent shall pay GH₵600.00 per month as maintenance in respect of the two children. 4. The respondent shall pay a monthly rent of GH₵60.00 in respect of accommodation for the children and the respondent. 5. The respondent shall pay the medical bills, school fees and provide school uniforms for the two children of the marriage as and when they fall due. (SGD) MICHAEL DEREK OCLOO DISTRICT MAGISTRATE 3RD NOVEMBER 2022