Sokolomo Vrs Dodoo [2022] GHADC 361 (29 November 2022)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 29 TH DAY OF NOVEMBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/ A4/63/21 WILLIAM SOKOLOMO PETITIONER VRS MARIAM DODOO RESPONDENT PETITIONER IS PRESENT AND REPRESENTED BY AMAZING GRACE ADOMAA ESQ RESPONDENT IS PRESENT AND REPRESENTED BY OSUMAN MOHADEEN ESQ. JUDGMENT The petitioner filed a petition for divorce in the Registry of this court on 25th June 2021 against the respondent for the following reliefs: a. That the marriage celebrated between the parties at AMA on 5th January 2013 be dissolved. b. That petitioner be granted custody of the children with reasonable access to the respondent. c. Any further order(s) as the honourable court may deem fit. The respondent filed notice of entry of appearance through her lawyer on 30th June 2021 and filed an answer on 18th August 2021 and cross petitioned as follows; 1. That the marriage celebrated between the petitioner and the respondent be dissolved 2. That the respondent be granted custody of the children of the marriage with reasonable access to the petitioner. 3. That the parcel of land purchased during the subsistence of the marriage be settled on respondent 4. That the petitioner be ordered to pay reasonable maintenance to the respondent and the children of the marriage. 5. That the petitioner be ordered to pay alimony as the court sees fit to respondent 6. That petitioner be ordered to pay respondent’s legal fees. The petitioner filed notice of appointment of solicitors on 23rd August 2021 and filed a reply and answer to respondent’s cross petition. On 3rd March 2022, petitioner filed notice of change of solicitors. At the end of the pleadings the issues that were set down for determination by the court are as follows; 1. Whether or not the parties marriage has broken down beyond reconciliation 2. Whether or not custody of the issues of the marriage should be granted to petitioner with reasonable access to respondent 3. Whether or not parcel of land acquired at kasoa, house and farm in petitioner’s hometown and a roofing sheet company being assets acquired during the subsistence of the marriage be shared equitably between the parties. 4. Whether or not respondent is entitled to financial settlement MODE OF TRIAL On 15th February 2022, the parties were directed by the court to file witness statements pursuant to Order 26A of the District Court Rules, 2009 (C. I. 59) The Petitioner filed his witness statement on 2nd March 2022 whilst respondent filed her witness statement and that of her witness on 22nd March 2022. BURDEN OF PROOF It is trite that in civil cases, proof is by a preponderance of probabilities. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736, Sophia Adinyira JSC (as she then was) delivered herself as follows; “It is a basic principle of 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.” This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved.” SHIFTING OF THE BURDEN OF PROOF The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; Except as otherwise provided, 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. In the case of Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. CASE OF THE PETITIONER The case of the petitioner as deduced from her pleadings and evidence before this court is that the parties were married under the ordinance on 5th January 2013 at the Accra Metropolitan Assembly. After the marriage parties cohabited at Darkuman and relocated to Aplaku. There are two issues of the marriage namely Nikita Sokolomo aged 8 years and Phineas Sokolomo aged 4 years. According to petitioner he had two issues before the marriage namely Orsborn Sokolomo aged 13 years and Excellence Sokolomo aged 8 years. It is the case of the petitioner that respondent after a disagreement deserted the matrimonial home in 2019 leaving behind their first child who was 4 years old and the second who was about 7 months old. It is the further case of the petitioner that the respondent clandestinely removed the children from his custody a year later until he lodged a complaint at Weija DOVVSU. He tendered a police investigative report in evidence and same was admitted and marked as Exhibit A. Petitioner added that since the separation of the parties, he has solely catered physically and financially for the needs of the children. He tendered receipts of school fees and same were admitted in evidence and marked as Exhibit B. Petitioner testified that respondent has refused to return to the matrimonial home and has ceased performing all her matrimonial duties having asserted in the presence of petitioner’s eldest brother and her parents that she is no longer interested in the marriage. Petitioner informed the court that respondent returned the customary drinks to his family a year ago and parties have been separated for three years. He therefore prayed for a dissolution of the parties’ marriage. RESPONDENT’S CASE IN ANSWER Respondent’s case as gleaned from her pleadings and witness statement is that she cohabited with the petitioner close to four years after having had two miscarriages before petitioner proposed marriage to her. It is the case of the respondent that before the marriage, petitioner had a child with one Juliana who had informed pastors of the Love Community Church that she was customarily married to the petitioner. She informed the court that based on the denial of the said marriage by petitioner and his elder brother David, she continued with her relationship with the petitioner. According to her, the parties’ marriage was scheduled to take place on 5th January 2012 however on 3rd January 2012, she received a call from her pastor that the mother of petitioner’s first child was seven months pregnant with his child and at this time she was already two months pregnant. The wedding was subsequently cancelled. Respondent stated that she thought about her unborn child, her reputation and that of her family and got married to the petitioner on 5th January 2013 at the Accra Metropolitan Assembly. Respondent informed the court that it was at the funeral of petitioner’s father that petitioner admitted to her that he was customarily married to the said Juliana. After the marriage, parties cohabited at Darkuman, Mambo spot. According to the respondent, at the time of the marriage of the parties, the petitioner was indigent and had no property. She added that petitioner was employed by Sunda Ghana Limited where he was dismissed for embezzling company funds. She catered for the school fees of petitioner at Pentecost University and maintained him as well as his nephew Mathias Sokolomo and the matrimonial home until he found his current job at Trouselina now Troysteel with her influence. Respondent stated that parties subsequently moved out of their rented apartment and moved into her empty room at her father’s house and based on the insistence of petitioner, parties created a washroom and two more rooms by dividing the big hall with hollow blocks. Petitioner moved out of the said house after a misunderstanding and subsequently moved back into the house after parties reconciled. Respondent informed the court that petitioner constructively pushed her out of the matrimonial home by gross cruelty to her. She particularised the cruelty as follows; That when petitioner found a job, he started womanizing, rented a place for his baby mama and had five other girlfriends including a Canadian whom he had planned to run off to Canada with. That petitioner joined her brother to beat her up mercilessly and stripped her stark naked over a disagreement over drying lines with her brother’s wife when parties moved into her father’s house and never visited her in hospital or pay her medical bill. That when respondent gave birth through a caesarean section to their first child, petitioner forcibly had sex with her till she collapsed and was admitted into Finney hospital. That petitioner’s sister Juliana Awason visited the matrimonial home and cooked and prepared petitioner’s bathwater leaving her prepared food untouched. That when respondent gave birth to the second child Phineas, petitioner failed to donate blood for her safe recovery. That petitioner was so irresponsible when parties moved into a rented apartment at old Weija. He barely slept at home and there was hardly any food at home. That petitioner took GHC2, 000.00 from her to furnish a place for his concubine Rose under the pretext of using the amount to balance his accounts at work That petitioner was irresponsible and left parties’ first child and in school long after closing where she was sexually molested by another child and that she single handedly paid for the child’s medical bills as he said he did not have money to take care of the child. That petitioner infected her with syphilis in 2019 and she bore all the medical expenses and although she informed him of her ailment, all he did was to insult her. Respondent said she was totally fed up with petitioner’s lies, irresponsibility and callousness and so she decided to seek for divorce however upon the plea of petitioner, parties attempted reconciliation at a retreat with one Pastor Kwasi Sarpong. According to the respondent, petitioner denied flirting and said openly that he left the marriage a year ago and that he was tired and wanted out and if respondent knows what awaits her, she will wear a helmet. She added that at this point, she felt her life was in danger so she rushed home, gathered her belongings and left for her father’s house with the children. She informed the court that her health was deteriorating very rapidly and she was depressed so petitioner offered to help her with the children by picking Nikita and bringing her on Fridays. He was also to pick Phineas and return him in the evenings however, he failed to abide by the understanding between the parties. Respondent testified that in 2020, she was in Koforidua when she heard that her children were not being well catered for. She rushed to petitioner’s home and found that the children were unkempt and frail and had not eaten. She picked them to her father’s house however the petitioner lodged a complaint with the police that she had kidnapped the children. Petitioner took the children from her and has refused to grant her custody. She added that she developed umbilical hernia in 2020 and petitioner gave her GHC500.00 towards her medical expenses. Respondent says that before she married the petitioner, he had no property however, he now has two plots of land at Kasoa, a farm and a house in his hometown and a roofing sheet company. She prays for the dissolution of the marriage, custody of the two issues of the marriage and an equitable distribution of the assets acquired during the subsistence of the marriage. Respondent called Ismael Kobina Dodoo her father as DW1 and Henrietta Nartey respondent’s friend as DW2. Both witnesses of the respondent corroborated respondent’s story about the fact that petitioner had impregnated a woman by name Juliana who was feared to have been married customarily by petitioner. DW1 testified that he consented to the parties’ marriage when petitioner’s family confirmed to him that the said Juliana was not married to Petitioner, DW2 also testified that the supervision of the girl who takes care of the children was non-existent during the birthday of the second child. WRITTEN ADDRESSES FILED BY THE PARTIES On the orders of the court, parties filed their written addresses on 18th October 2022. Both addresses have been considered in the judgment of this court. THE COURT’S ANALYSIS AND OPINION Issue one: whether or not the marriage between the parties has broken down beyond reconciliation. Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2 (1) of Act 367 explains 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 facts: (a) That the Respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the Respondent (b) That the Respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition (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 provided that the consent shall not be unreasonably withheld and where the court is satisfied that it has been withheld the court may grant a petition for divorce under this paragraph despite the refusal (e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition (f) That the parties after a diligent effort been unable to reconcile their differences. Section 2(2) of Act 367 imposes a duty on the court to enquire into the facts alleged by the petitioner and the respondent. Section 2(3) also provides that although 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. His Lordship Dennis Adjei J. A stated this position of the law in CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (2015) 99 GMJ 202, thus; “The combined effect of sections 1 and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in Section 2 of the Act has been proved.” From the evidence, the Petitioner based his allegations for the breakdown of the marriage on the desertion of the Respondent from the matrimonial home leaving behind the two issues of the marriage who were aged 4 years and 7months respectively. To succeed under the fact of desertion, the petitioner must establish that the respondent has deserted the petitioner for a continuous period of two years immediately preceding the presentation of the petition. See section 2(c) of Act 367 cited supra. The respondent does not deny the claim of the petitioner that she deserted the matrimonial home however at paragraph 6 of respondent’s answer to the petition, she stated that the petitioner constructively pushed her out of the matrimonial home by gross cruelty to her. She also admitted at paragraph19 of her witness statement that she moved out of her matrimonial home because she felt her life was in danger which assertion was vehemently denied by the petitioner. In Tetteh Ayaa Iddrisu v. Winfred Otuafro & Anor [2010] SCGLR 818, the Supreme court held as follows; “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on that issue only because the original claim failed.” Ansah JSC in Joseph Akonu-Baffoe and 2 others v Lawrence Buaku and Another, Civil Appeal No. J4/6/2012 emphasized the position of the law on counterclaim as follows; “In essence, a defendant’s counterclaim is to be treated in the same way as the plaintiff’s case. The roles are reversed and the defendant as plaintiff in the counterclaim assumes the burden to prove his case.” Respondent tendered Exhibit MDX2 which is a police investigative report dated 26th April 2022 and a Police Medical report as proof of assault. Paragraph 3 of Exhibit MDX2 stated “though both suspects denied the allegations, they both paid all the medical bills to the complainant and all the parties were advised to live in peace”(emphasis is mine) From Exhibit MDX2, petitioner denied the allegations of assault and to my mind Exhibit MDX2 does not conclusively prove a case of assault against the petitioner. From the evidence, the respondent was unable to lead any evidence to establish the claim of unreasonable behaviour on the part of the petitioner. I find that the parties’ marriage has broken down beyond reconciliation due to the separation of the parties for well over three years due to the desertion of the respondent from the matrimonial home in 2018. I therefore proceed under Section 47 (1) (f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between William Sokolomo and Marian Dodoo celebrated at the Accra Metropolitan Assembly on 5th January, 2013 is hereby dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. Issue two: Whether or not custody of the issues of the marriage should be granted to petitioner with reasonable access to respondent The courts have consistently held that on the award of custody of a child, the welfare of the child must be the paramount determining factor. This principle has been given statutory force by section 2 of the Children’s Act, 1998 (Act 560) which states: The best interest of the child shall be paramount in any matter concerning a child. This principle of the law was stated in OPOKU-OWUSU V OPOKU-OWUSU [1973] 2 GLR 349-354 where it was held as follows; “in such an application, the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents.” The considerations for custody or access have been provided in Section 45 of Act 560 as follows; A family tribunal shall consider the best interest of a child and the importance of a young child being with his mother when making an order for custody or access. Subject to subsection (1), the tribunal shall consider (a) the age of the child (b) that it is preferable for the child to be with his parents except where his rights are persistently abused by his parents (c) the views of the child if the views have been independently given (d) that it is desirable to keep siblings together (e) the need for continuity in the care and control of the child (f) Any other matter that the Family tribunal finds relevant. Applying the law to the facts of the present case, it is uncontroverted that the two issues of the marriage have been living with the petitioner since the respondent moved out of the matrimonial home in 2018. At paragraph 8 of respondent’s answer and cross petition filed at the registry of this court on 18th August 2021, she stated as follows; “…that she was forced to grant him temporary possession of the children because he refused to rent a place for them when she left the matrimonial home with them”. In her evidence before this court, she abandoned the claim of accommodation and stated that her health was deteriorating and as a result petitioner offered to assist her with the children and that at that point her feet were swollen and the younger child was eleven months. She claimed she could not give the children to her mother because she does not have time or feelings to take care of children. In Odupong v The Republic [1992-1993] 3 GBR 1028 – 1048 CA, Brobbey J. A (as he then was) delivered himself as follows; “The law is now settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction.” Applying the law cited to the facts of this case, I find that there are contradictions in the story of the respondent with regard to why she gave custody of her children to the petitioner whilst she was leaving the matrimonial home. As a result I find that her story is not credible. From the totality of the evidence before this court, I find that the respondent gave up custody of her two children at very tender ages when they needed her the most with the excuse of lack of accommodation as stated in her pleadings cited supra when her father’s mosque which petitioner had converted into a two bedroom with toilet and bath was available. Finding that her excuse of lack of accommodation was not plausible, she quickly switched to the excuse of an ailment in her evidence in chief claiming that petitioner was the only person she could entrust with the care of the children as her mother was not caring enough to take care of them. DW2 testified during cross examination that during the 3rd birthday of the second issue, respondent had been contracted to do a décor for a client and left after the set up and could not sit through the celebration. It is abundantly clear from the evidence that the two issues have been living with the petitioner even when they were of tender ages during the separation of the parties. I find that it is in the best interest of the two children that custody be granted to petitioner for continuity in their care and control and the need to keep the siblings together. Accordingly, I do hereby award custody of Nikita Sokolomo and Phineas Sokolomo to the petitioner with reasonable access to the respondent on weekends. School vacations shall be shared between the parties. Petitioner shall be responsible for the maintenance of the two issues as well as payment of their school fees and medical bills as and when they fall due. Provision of casual and outing clothes shall be a shared responsibility of the parties. Issue three: Whether or not parcel of land acquired at kasoa, house and farm in petitioner’s hometown and a roofing sheet company being assets acquired during the subsistence of the marriage be shared equitably between the parties. It is provided by article 22(2) and (3) of the constitution1992 that: 22(2) Parliament shall as soon as practicable after the coming into force of this constitution, enact legislation regulating the property. (3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article – (a) Spouses shall have equal access to property jointly acquired during marriage. (b) Assets which are jointly acquired during the marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It is also provided by section 20(1) of Act 367 that: 20(1)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. In MENSAH V MENSAH [2012] 1 SCGLR 391, the Supreme Court set out the applicable guidelines on sharing of marital properties jointly acquired during the subsistence of the marriage as follows; “we believe that common sense and principles of general fundamental human rights require 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 were facilitated by the massive assistance that the other spouse derived from the other.” In PETER ADJEI V MARGARET ADJEI SUIT NO. J4/06/2021 dated 21 April 2021, his lordship Apau JSC delivering the majority decision of the court held as follows; “…Any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan 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. What this means in effect is that it is not every property acquired single handedly by any of the spouses during the subsistence of the 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 the 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 in the case of Fynn v Fynn supra, the presumption theory of joint acquisition collapses…” The respondent in her evidence in chief testified that the petitioner has acquired two plots of land at Kasoa, has a house and a farm in his hometown and owns a roofing sheet company. The petitioner admitted that he had a plot of land at Ofaakor but denied the assertion of respondent that he owns a roofing sheet company and a house and a farm in his hometown. The petitioner having denied the assertion of the respondent, she had the burden of providing evidence to prove her assertion. In the case of Zabrama v. Segbedzi [1991] 2 GLR 221 at 224, the Court of Appeal held as follows; A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment 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 be properly and safely inferred.” During cross examination of the respondent, the following information was elicited; Q: And Mariam, you also stated that the petitioner has a farm and built in his hometown but you have not brought anything before this court to prove same? A: We had a book in which we used to record monies petitioner sent to his brother. I will tender same in court. Q: Marian you said the petitioner has a roofing sheet manufacturing company. Where is it located? A: It is on the Kasoa road. Q: But you do not know the location? A: That is so Q: I am putting it to you that such a company is non existent A: It exists. I want to be given time to show evidence to the court. From the evidence, the respondent failed to lead any evidence to show the existence of a roofing company, a house and a farm and as a result her claim fails and same is dismissed. Again under cross examination, the respondent admitted that the petitioner advanced monies to divide her father’s mosque into a 2 bedroom with a toilet and a bath where respondent is presently residing. From the evidence, the fact that parties acquired a piece of land at Kasoa Ofaakor during the subsistence of the marriage is uncontroverted and the fact that petitioner made a substantial contribution to respondent’s father’s mosque by converting same into a 2 bedroom house with toilet and bath presently occupied by the respondent is also uncontroverted. Accordingly, the court settles 30% of the value of the land on the respondent with 70% to the petitioner. Issue 4: whether or not the respondent is entitled to financial settlement Considering the issue of financial settlement, Section 20 of Act 367 allows the court to grant financial settlement to a party upon the dissolution of a marriage. The court in doing that has to take into consideration certain factors such as the economic conditions of the parties. In the case of BARAKE V BARAKE [1993-1994] 1 GLR 635, the court held as follows; “Under section 20(1) of Act 367, the court had power to grant financial provision where married couples are divorced. The basic consideration was not based on proof of ownership or contribution towards acquisition of properties to be owned but on the needs of the parties.” The court can order a lump sum payment to be made to a spouse in addition to property settlement depending on the circumstances of the case. See Ribeiro v Ribeiro [1989-1990] GLR 109 at 115 to 116. It was held by Lord Denning M. R in WATCHEL V WATCHEL (1973) 1 ALLER 829 at 840 that in every case the court had to consider whether to order a husband to pay a lump sum to his wife and that the circumstances are so various that few general principles can be stated. One thing is however obvious. No order shall be made as lump sum unless the husband has capital assets out of which to pay it without crippling his earning power. From the totality of the evidence before the court, I find and hold that the respondent not led any evidence to show that the petitioner has financial assets out of which he can pay financial settlement to her without crippling his earning power especially when from his affidavit of means, petitioner presently earns a net salary of GHC2, 026.39 and is saddled with maintenance of four children, payment of school fees, medical bills and provision of other necessaries of life. Accordingly I make no order as to financial settlement. DECISION It is ordered that the marriage of the parties has broken down beyond reconciliation by the desertion of the respondent from the matrimonial home. A decree of divorce is granted; Custody of the two issues of the marriage are awarded to the petitioner with reasonable access to the respondent on weekends. School vacation is to be shared between the parties. Petitioner shall be responsible for the maintenance of the two issues including payment of their school fees and medical bills as and when they fall due. Provision of casual and outing clothes for the children shall be a shared responsibility of the parties. The Respondent is entitled to 30% of the value of land at Ofaakor acquired during the subsistence of the marriage; I make no order as to financial settlement. Parties are to bear their own legal costs. ............................................... H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)