Konadu Vrs Konadu [2022] GHADC 92 (24 August 2022)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 24TH AUGUST, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE RACHEAL KONADU PETITIONER SUIT NO. A4/3/21 VRS KWABENA KONADU RESPONDENT PETITIONER PRESENT RESPONDENT PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES This is a proceeding under the Matrimonial Causes Act, 1971 of Act 367. JUDGEMENT The parties have married for eighteen (18) years at Goaso, after the marriage they lived at Ashanti Bekwai. There are two (2) children in the marriage: Namely: (1) Ebenezer Kwabena Konadu --- 17 years (2) Erica Brago Konadu --- --- --- 10 years On the 29th October, 2021 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayers were formulated in the particulars of her petition as follows: (1) An order for the dissolution of the Customary marriage between the parties (2) An order for the Respondent to pay GHc20,000.00 as a push package for the 18 years of marriage (3) Petitioner seeks for half share of the entire 4 bedrooms self-contain house situate at Goaso Low Cost. The Respondent filed an answer and prayed for the following relief: Respondent prays that the customary marriage between the two be dissolved. The court referred the matter to both parties to see their families for settlement but they told the court that all efforts to make amends prove futile. Dotse JSC in GLADYS MENSAH V. STEPHEN MENSAH [2012] 1 SCGLR 391 quoted Lord Denning in his book, “LANDMARKS IN THE LAW” Butterworths, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows: “….. There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society as well. THE PETITIONER’S CASE The parties got married customarily about eighteen years ago with two issues in 2002 and stayed together happily as husband and wife at Ashanti Bekwai where the Respondent’s works. Petitioner contended that they started some building project situate at Goaso Low Cost and she was fetching water for the construction of the four (4) bedrooms self-contain. It was the case of the Petitioner that she moved from Ashanti Bekwai and stayed at the completed four (4) bedrooms self-contain at Goaso Low Cost. She contended that the Respondent told her that he will not marry her again and that he has divorced her and threw her belongings from the matrimonial home and he has stopped performing his conjugal right as a husband for the past one year and has also stopped maintaining her. According to the Petitioner this compelled her to send the Respondent’s drink to his family. She further contended that the Respondent threatened her to wit “if I did not die he will die” and due to that she vacated the matrimonial home. EVIDENCE BY PW1 PW1 corroborated the Petitioner’s assertion that the Respondent threw the Petitioner’s belonging from the matrimonial bedroom outside of the house and tendered pictures of the belongings to support his case. THE RESPONDENT’S CASE It is the Respondent case that their marriage was very peaceful and they cohabited at Ashanti Bekwai thereafter until the Petitioner started to demonstrate a strange character and attitude towards the marriage. According to the Respondent the Petitioner easily gets on her nerves and pick out fight with him at random. He testified that the Petitioner whenever gets annoy will never compromised to end the annoyance but will let her annoyance takes precedent for almost two to three months and if the Respondent refused to reconcile for the marriage to continue Petitioner will never create peace. He further stated that the Petitioner always accused the Respondent’s mother as a bad mother-in-law and being a witch. This attitude of the Petitioner has continued for a long time and these made him the Respondent who promised the Petitioner to be a good husband rescinded that promise. He maintained that the Petitioner upon accusing his mother as a witch has also brainwashed the children in the marriage that their grandmother the Respondent’s mother is a witch and this has made the children behaving strangely towards his mother and even refused to eat his mother’s food anytime the children visited him in his mother’s house. He reiterated that this conduct of the Petitioner has created cracks in the marriage as she continuously hail insults on his mother. He stated that all this behavior of the Petitioner emerges when they were living at Ashanti Bekawi. The Respondent continued to state that the behavior of the Petitioner was so a pouring that she does not go to market as married woman but rather sit in the house and send people to go to market for her before she cooked. She also picks up fight with the Respondent anytime he returned from work with false allegations and accusation and this made the Respondent deserting the house because of the Petitioner’s random conduct of insults. According to the Respondent’s the Petitioner exhibited all these characters at the early stage of the marriage and this confused the Respondent a lot. He further testified that in 2014 the Petitioner packed her belongings back to Goaso and sent a drink to the Respondent’s family that she cannot continue the marriage. His sister Veronica Bofah (Deceased) called him and told him about it and he also called his family and they confirmed same. He stated that this separated them for one and half years. So the Respondent decided to marry another woman when the Petitioner sent an apology through his friend Eric Boateng for the Respondent to rescind his decision of marrying another woman but rather the Respondent should allow them to reconcile. According to the Respondent they came together as man and wife but again the Petitioner never joined him at Bekwai again but continued to stay at Goaso. He said that before they reconcile the marriage the Petitioner was asked to apologize to the Respondent’s mother with compensation and she bought a cloth which has insulting inscription and this annoyed his mother and she refused to accept the cloth. According to the Respondent it was due to the Petitioner’s behavior hence the divorce. He further stated that the Petitioner does not respect him and also ejected a tenant in their matrimonial home without the Respondent’s concern. He said the land on which he built his matrimonial house belongs to the Respondent’s mother because the Respondent’s land was very swampy and difficult to put a building on it hence the mother’s land. He told the court that the Petitioner did not support him or help him in the building in 2004 because the Petitioner complained that the land is a family property. DW1 testified to the cocoa proceeds of Ghc300.00 that Respondent gave to her to be given to the Petitioner. The legal issues that fall for determination are as follows: a. Whether or not the marriage has broken down beyond reconciliation. b. Whether or not the Petitioner has a share in the property acquired during the subsistence of the marriage. c. Whether or not the Petitioner is entitled to a reasonable lump sum of GHc20,000.00 as a push off package Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: “….. Except as otherwise provided by law, unless and until 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 he is asserting”. Before I examine the evidence adduced at the trial, it is pertinent to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) as follows: Sections 2(1)(b),(d) & (f) and (3) of Act 367 provides as follows: “2(1) 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 fact: (b) that the Respondent has behaved in 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 husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the grant of a decree of divorce (f) that the parties to the marriage have, after diligent effort, they unable to reconcile their differences. (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 MENSAH V MENSAH [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough…” SOME EXTRACTS FROM THE CROSS-EXAMINATION BY THE PARTIES Q. I am putting it to you that the two plots of land belongs to you as you told me earlier prior to our marriage? A. It is not true The above cross-examination shows that the two plots belong to the Respondent prior to the marring of the Petitioner. In the present suit, both parties have stated during trial that the marriage has broken down beyond reconciliation and they cannot live with each other anymore. In the instant case the Petitioner told the court that she sent the marriage drink to the Respondent because the Respondent threw her belongings from the matrimonial bedroom to the outside of their house and this was corroborated by PW1 the father of the Petitioner and even tendered photograph of it as exhibit ;A;. On the other hand, the Petitioner sees the marriage being threatened as Respondent told her that if she does not vacate the matrimonial home either one will die hence the vacation. According to the Respondent in his evidence adduced that the Petitioner ever since they got marriage has put up a strange behavior and always insult the Respondent mother of being a witch and Petitioner being so lazy does not go to the market to buy foodstuff to cook for the house. He added that the Petitioner is fond of apportioning accusation on him anytime he retired to the house after work and this made him deserted the house for sometime. According to the Petitioner the Respondent told her prior to the marriage that he has acquired two plots of land and the four rooms self-contained house was built during the subsistence of the marriage as Petitioner adduced that she fetch water and rendered other services during the construction of the building. The evidence on record shows that the Petitioner and the Respondent have not lived together as husband and wife since 2020 when Petitioner’s conduct changed suddenly when the couple where living at Ashanti Bekwai. There has not been any consummation since the marriage suffered cracks. As I have stated above, the Respondent has also given his consent to the dissolution of the marriage and that he cannot reasonably be expected to live with the Petitioner. It is clear that the marriage has broken down beyond reconciliation. In the circumstances, I rely on section 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the customary marriage filed on 29th October, 2020. Section 20(1) of Act 367 provides that: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable” It has been established by evidence that the Respondent bought the land before marrying the Petitioner. The building was put up during the pendency of the marriage largely from the financial resources from the Respondent with little assistant from the Petitioner in terms of fetching and cooking for the workers. In the circumstances, I rely on the substantial contribution principle in the case of Boafo vrs Boafo (2005-2006) SCGLR 705 and give the followings orders: a) That the Respondent takes three (3) bedrooms from the house and the Petitioner takes one bedroom respectively. b) The Respondent would continue to provide necessaries by paying the school fees and medical bills of the two (2) children in the marriage. c) The Respondent is to maintain the two (2) children at GHc500.00 per month d) The Respondent shall pay a compensation of GHc15,000.00 to the Petitioner. e) The Petitioner should still have custody of the two children f) The Respondent is given access to the two children when they are on vacation and return them a week to reopen of the school. …………………………………….. HW MAGDALENE THOMPSON DISTRICT MAGISTRATE .