DIANA SAM OTOO VRS OTHNIEL TORSU (C5/312/2020) [2022] GHACC 353 (20 January 2022)

IN THE CIRCUIT COURT HELD IN ACCRA ON 20TH DAY OF JANUARY, 2022 BEFORE HIS HONOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ========================================================= DIANA SAM OTOO AMANFROM – KASOA ) ) ==== PETITIONER SUIT NO. C5/312/2020 VRS OTHNIEL TORSU ) LATERBIOKORSHIE ) ACCRA ) ==== RESPONDENT COUNSEL FOR PETITIONER – NANCY TETTEH RESPONDENT – SELF REPRESENTED ========================================================= FINAL JUDGMENT ========================================================= (i) (ii) (iii) Dissolution of the Marriage between the parties since the celebrated marriage has broken down beyond reconciliation. Recovery of amount of Ten Thousand Six Hundred and Fifty-Two Ghana Cedis (Gh¢10, 650). Interest calculated on the amount in paragraph (ii) supra from July 2017 till date of final payment. (iv) Custody of the issues be granted to the petitioner with reasonable access to the (v) respondent. The respondent pay an amount of Gh¢300 monthly as maintenance for the issues, pay school fees and medical bills as and when they shall due. CROSS PETITION (i) Dissolution of the marriage (ii) Custody of the issue with reasonable access to petitioner (iii) Petitioner to pay monthly maintenance of Gh¢500 to respondent (iv) Lump sum financial provision for the respondent (v) Parties to bear their own cost. WITNESS STATEMENT OF THE PETITIONER, DIANA SAM-OTOO That she is a teacher where the marriage between the parties were celebrated on 29th day of March 2014 at the office of Metropolitan Assembly, Cape Coast under Part III of the Marriages Act, (Cap 27). There are three (3) issues of the marriage namely; (1) EMELDA SENAM TORSU – 5 years, (2) OTNIEL SEDEM TORSU – 3years, (3) ADRIEL SEDINAM TORSU – 2 years. That the parties to the marriage are living separated, petitioner at Cape Coast whilst respondent in Accra, but after the birth of the first child, respondent migrated from Accra to Cape Coast to live with me for 2 years and later relocated to Accra on respondent’s request. I later moved from the matrimonial home because of fear of my life. I was basically responsible for the maintenance of the matrimonial home because respondent failed to do same, and this had to create constant tension and acrimony between us in the matrimonial home. The respondent then became abusive, insulting and very assaulting at the least or no provocation. That respondent on several occasions asked me to pack out from the matrimonial home. It is also the case of the petitioner that respondent convinced her to secure a loan facilities at both PRUDENTIAL and GCB banks and gave him the money where both facilities and interest amounted to Gh¢10,652, which loan I solely paid for them. That respondent assaulted her even when she was pregnant. Respondent once beat me up in the open market and a stranger who came in to separate us was also beaten up by the respondent. On another occasion respondent said I was eyeing him in a way that was not pleasant to him so he also assaulted me. Even to the extent that respondent once reported me to the police on a charge of me organizing men to beat him up, but due to lack of evidence, the Division Commander advised we settled the matter home amicably. My father invited respondent on several occasions which he never honoured the invitation, I was then not staying in the matrimonial home, so I never went there, and communication between us totally broke down. That petitioner has no access to the children, he instructed the teachers in the school not to give me access. The last issue of the marriage has since been with me which I solely maintain her up to date. I asked for a separation in the presence of both families and same was granted, hence now not in the matrimonial home, a date was fixed to resolve the matter but respondent and his family never turned up. Respondent has caused a lot of pain, hardship and embarrassment and as such cannot be reasonably expected to remain as a wife to him because the marriage has broken down beyond reconciliation. WITNESS STATEMENT OF OTHNIEL TORSU, THE RESPONDENT WHEREIN. The respondent avers that the petitioner packed out of the matrimonial home without any provocation in the company of a man who she alleges is a brother. But prior to the petitioner packing from the matrimonial home there was a complete ban on any sexual intercourse because the petitioner refused my advances for sex any time I put this forward. Respondent denied ever insulting or assaulted petitioner but rather the petitioner who at times poured insults on him on the least provocation. That petitioner at times, hit, slap and visit all kinds of physical abusive on the respondent and had endured that for the past five (5) years, and even very insulting in the presence of the children. Petitioner at times for a period of about three (3) months continuous will not cook for the home and I was called upon to do same, and even if she cooked she placed my food in a refrigerator, but when I complained she would only tell me I was even lucky to be given food. It is also the case of the respondent that petitioner once organized men to beat me to the extent that his shirt was torned out and I reported the case to the police. That petitioner reported me to the Social Welfare on the issues of custody, and it was resolved that petitioner takes the 1st child and the two old children live with me, and since then I have been taken care of the two kids who are with me. Petitioner doesn’t take care of the children but I do these duties and pray the custody if given to the petitioner, the children would suffer. Petitioner has not been taken care of the children and I solely do that. That I deny ever requesting petitioner to acquire a loan on my behalf and the said signature on the loan form purported to be my signature is a forgery. Petitioner insisted she never lived me and she still loved her former boyfriend. That about four (4) attempts to reconcile our differences have all fallen on rocks, hence the dissolution, the only option, since the marriage between us has broken down beyond reconciliation, because petitioner has behaved in such a way that I can’t reasonably be expected to live with her as man and wife. IN RE PRESIDENTIAL ELECTION PETITION, AKUFO ADDO, BAWUMIA & OBETSEBI LAMPTEY (THE AKUFO ADDO CASE) (NO 4) (2013) SCGLR (SPECIAL EDITION) 73, - GBADEGBE JSC – PAGE 464 --- “ As the case herein fought on evidence placed before us, our task in keeping with a long and settled line of authorities is to reach our decision on all evidence on a balance of probabilities – see sections 10, 11, 12, 13 and 14 of the Evidence Act, NRCD 323 of 1975. This being a civil case, the petitioner bear burden of leading evidence on a balance of probabilities. At this point, I venture to say that the effect of the acts on which the petitioners rely to sustain their action is one that must turn on a careful consideration of the applicable statutory provisions and so stated it would appear that our decisions turn solely in facts but a mixed questions of facts and law. Our courts have over the years determined several cases in which decisions are based on a consideration of mixed questions of facts and law and as such this case does not present to us a challenge that historical in terms of evaluation of evidence --- The above stated case becomes important in this matter because, the sections quoted from the Evidence Decree Sections 10, 11, 12, 13 and 14 put enough burden on the petitioner in this case to prove his case based on balance of probabilities, failure to do so will have a ruling against her in respect of her claims. From the provisions cited from the Act, 1975 NRCD 323, this burden on the petitioner keeps on shifting unto the respondent the moment she is able to discharge the burden on her and when shifted, the respondent will also be called upon to discharge same. Failure on the respondent to also discharges same after a particular relief or claim is shifted from the petitioner unto him, will also be factual in so far as that claim is concerned. The first burden on the petitioner to discharge is, she wants the court to dissolve their marriage and she must discharge the burden of whether or not the marriage she is talking about has broken beyond reconciliation, as stated in section 1(2) of the Matrimonial Causes Act, 1971 367. Section 1(2) – The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. From the evidence led by the parties themselves, there is too much mistrust so much so that it has affected the foundation of the marriage, allegation and counter allegation of assault, disrespect, insults and the likes cannot sustain the marriage and therefore the petitioner cannot reasonably be expected to live with the respondent as man and wife. Parties from their own evidence too, tried as much as they could, falling on family members, pastors, church leaders to reconcile their differences, but all these efforts fell on rocks. Section 2 of the Matrimonial Causes Act, 1971 (Act 367) also states the purpose of showing that the marriage has broken down beyond reconciliation which in proof of one or more of them should satisfy the court that the marriage has broken down beyond reconciliation which partly states: Section 2(1) (b) – that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or 2(1) (f) – that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. ASH V ASH (1972) I ELLER 582 & 586 – “in the instant case, petitioner is required to adduce sufficient evidence in proof of section 2 of Act 367 to satisfy the court to rule that the marriage between the parties has broken down beyond reconciliation. KOTEI V KOTEI (1974) 2 GLR 172 PER SARKODIE J - ---“ In order to succeed in a petition for a divorce, a petitioner has the burden in proving facts of the breakdown of the marriage. There must be in existence of at least one of the above mentioned conditions justifying the exercise of a court’s discretion to dissolve the marriage. ANSAH V ANSAH (1982/83) GLR 1127 -1133. “The court in granting divorce held that on the facts that husband had behaved in such a way towards the wife that she could not reasonably be expected to live with him on application of the Matrimonial Cause Act, 1971 (Act 367). Section 2(1) (b) - The test under this section, was whether the petitioner could reasonably be expected to live with respondent inspite of the latter’s behavior. The test was therefore objective. But the answer obviously had to be related to the circumstances of the petition in question. That had to be a question of fact in each case. It followed that the conduct complained of must be sufficiently serious since mere trivialities would not suffice. The conduct of both parties who are both petitioners in the case because of cross petition filed by the respondent have made their marriage from their own evidence led in court, and hence section 2(1) (b) and (f) have satisfied the court that, really the marriage between the parties has broken down beyond reconciliation, hence the court grants the divorce petition and issues divorce certificate to the parties to signify the end of the road, the marriage certificate issued to the parties during the cerebration of the marriage is cancelled forthwith. The next issue, for petitioner to recover Ten Thousand, Six hundred and fifty Two Ghana Cedis (GH¢10,650) and interest thereon, it seems petitioner herself was advised by her lawyer to abandon same. Nothing or little was said about it in her witness statement, the evidence led in court and also the evidence filed on behalf of the petitioner by her counsel. The court therefor dismisses that assertion as abandoned. In the issue of custody, as the petitioner is praying to the court to grant her custody and for Respondent to pay Gh¢300 monthly for maintenance of the three (3) children, the Respondent in his cross petition is also praying for custody of the children with monthly maintenance of GH¢500. THE CHILDREN’S ACT 1998 (ACT 560) The interest of a child shall be paramount in any matter concerning a child, and shall be the primary consideration by any court, person, institution or other body in any matter concerned with the child. A Family Tribunal shall consider the best interest of child and the importance of a young child being with his mother when making an order for custody or access. Section 45 of the Children’s Act stated that the Family Tribunal shall also consider; (a) The age of the child (b) That it is preferable for a child to be with his parents except where his rights are persistently been abused by his parents. (c) The view of the children if views have been independently given. (d) The need for continuity in the care and control of the child. (e) Any other matter that the Family Tribunal may consider. BRAIN V MALLET (1975) GLR 8 – “The question of custody, it is well settled that the welfare and happiness of the infant was the paramount consideration. This has now been given statutory for by Act 372, section 16 (2) in considering matters affecting a fact from every angle and give due weight to every relevant material. OPOKU-OWUSU V OPOKU-OWUSU (1975) 2GLR 349 “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. In the normal course the mother should have the care and control of every young children especially the girls and those who for some special reason needs a mother’s; and older boys to the influence of the father. But there is no principle in custody case that a boy of eight (8) years should all other things being equal, be with his father, in all cases the paramount interest is the welfare of the infant and the court must look at the whole background of the infant’s life and all the circumstances of the case. From the facts, both on record and in court, it is clear that petitioner deserted her matrimonial home, according to herself for fear of her life and left the three (3) issues of the marriage with the respondent, but she later came for the last one and respondent now keeping two (2) of the children. In the middle of the trial petitioner moved a motion for custody of the two children who are at the moment with the respondent and was refused by the court, that petitioner should keep the last child with her as respondent also keeps the two children with him and arranged for amicable and peaceful access to each other and that seems to be working perfectly to the satisfaction of the court, hence the court confirms the interim order made per section 45(1) of Children Act. Act 560 – The need for continuity in the care and control of the child. The petitioner being the mother somewhere deserted the matrimonial home and also abandoned her own three (3) children which is unusual of a Ghanaian woman, they usually move along with their kids, but petitioner in the instant case left them in the care of the respondent who is a man, which the children have become familiar with and that interest of the children should be protected. The court will like to state emphatically that the status quo, where the petitioner keeps one of the children and the respondent keeps two of them be maintained, with the necessary access to each other on weekends, holidays, vacation etc. The application for maintenance may be made against any person who is liable to maintain the child or towards the maintenance of the child – section 48 (3) of Children Act 560. The Family Tribunal shall consider the following when making maintenance order. (a) The income and health of both parents of the child or of the person legally liable to maintain the child (b) Any impairment of the caring capacity of the person who has a duty to maintain the child. (c) The financial responsibility of the person with respect to the maintenance of other children (d) The cost of living in the area where the child is resident (e) The rights of the child under this petitioner (f) Any other matter when the Family Tribunal considers in sect 49. In this case, it is a shared custody, petitioner keeping the last one whilst the respondent keeps the two of them, both of them are income earners. But while petitioner is asking for Gh¢300 monthly maintenance from the respondent, respondent is also asking for Gh¢500 maintenance order from the petitioner both in equal capacity of having custody to all the three (3) children. Both parties are working, petitioner a teacher whilst respondent is an interior decorator. Petitioner earns fixed and regular income whilst the income of respondent is neither fixed, nor regular income since respondent income is not fixed neither regular, he has to plan well in order to take good care of the children. Parties are therefore ordered to maintain the child/children he/she is taking care of with minor assistance from the petitioner whose income is fixed, regular and may be higher than that of the respondent and added to the fact that respondent is also maintaining two of them. This will be in the area of their schooling, medications especially when on admission in a hospital. Section 20 of Act 367 – MCA 20(1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof as part of financial provision as the court thinks just and equitable. OBENG V OBENG (2013) 63 GMJ “what is just and equitable” may be determined by considering the following factors; the income, the earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by parties before breakdown of the marriage, the age of each of the parties to the marriage and duration of the marriage. In this instant case, both parties in their respective petitions, both the main petitioner and cross petitioner asked for lump sum payment from each party. Both are in the working class. The court by taking into consideration the payment of lump sum affecting the good maintenance of the children eg, a child is sick instead of taking him to hospital, will go to over the counter drug store to look for some low class medication because he/she has no money because he/she is paying for lump sum instead of sending a child to a better school for good foundation, will send him to a low class school with lower school fees because of the same reasons and the likes, the court will refuse any lump sum payment. None of the parties to the marriage will be affected in any way by refusing that lump sum, none of the parties is in a destitute situation, where he/she needs the court’s bail out. DECISION MARRIAGE DISSOLVED H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 11