DANSO VRS MAYME (A4/06/2024) [2024] GHADC 168 (24 April 2024)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON WEDNESDAY THE 24TH DAY OF APRIL, 2024 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ. ------------------------------------------------------------------------------------------- SUIT NO. A4/06/2024 GENEVIEVE DANSO …… PETITIONER

BONFO STREET

TAKORADI VRS: BERNARD MAYME ..…. RESPONDENT

TAKORADI -----------------------------------------------------------------------------------------

JUDGMENT --------------------------------------------------------------------------------- The petitioner on the 1st day of November 2023 invoked the court’s jurisdiction in a petition for divorce under section 1 of the Matrimonial causes Act, 1971 (ACT 367) for the dissolution of his ordinance marriage with the respondent. The petitioner also prayed for other reliefs consequent to the dissolution of the marriage. The reliefs are: a. That the custody of the child Valerie Aba Mayne (7years) be given to the petitioner with reasonable access to the respondent. b. Respondent should be responsible for the child’s school fees, medical care and clothing c. Respondent to maintain the child GHC 1000.00 a month. The undisputed facts in this case are that, the parties celebrated their marriage on the 16th day of April 2016, with the marriage certificate in evidence as exhibit A and cohabited at SNNIT flat Anaji Takoradi after the marriage. There is also no dispute that the 1 marriage begot one child namely Valerie Aba Mayne 7 years respectively. Who is by the laws of Ghana a juvenile.

BURDEN OF PROOF It's essential to note that the burden of proof lies with the petitioner, who must demonstrate, based on the balance of probabilities, that the marriage has irreparably broken down. Legal principles dictate that the party making the allegations must provide convincing evidence to substantiate their claims. The court adheres to the principle that the party raising the issue in their pleadings bears the initial burden of proof, with the burden only shifting to the opposing party when some evidence is presented to support the claim. See the cases of ABABIO V AKWASI III (1994-1995) 2GBR, 774, and BISI V TABIRI (1987-1988) 1GLR 360 Similarly in the case of DANQUAH V DANQUAH (1979) GLR 371 the court held: “The requirement in section 2(1) of Act 367, that the petitioner must satisfy the court of one or more of those facts therein specified to prove that the marriage had broken down beyond reconciliation would mean those facts the petitioner had both pleaded and proved. It would accordingly exclude facts pleaded but not proved or facts proved but not pleaded”. The test to apply in evaluating the evidence is equally stated in holding 1 in the case of ANSAH V ANSAH (1982-83) GLR 127 as follows: “On the facts, the 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 causes Act 1971

(Act 367), s. 2(1) (b). the test under the section, was whether the petitioner could reasonably be expected to live with the respondent in spite of the latter’s behavior. The test was therefore objective. But the answer obviously had to 2 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”.

DISSOLUTION OF MARRIAGE In a divorce proceeding, it's crucial for the court to thoroughly assess all the evidence presented, rather than simply accepting one party's claim of a broken marriage. The court's evaluation should determine if the evidence aligns with any of the grounds specified in section 2 of the Matrimonial Causes Act (MCA). According to section 1(2) of the MCA, the sole basis for granting a divorce is the irreparable breakdown of the marriage. To establish this breakdown, the petitioner and/or the respondent must provide evidence supporting any of the factors outlined in section 2(1)(a) to (f) of the MCA. This principle was elucidated in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) on page 202. The judge emphasized that the court should only grant a divorce when there's clear evidence of an irreparable marriage breakdown. Even if the specified facts are proven to the court's satisfaction, it still has the discretion to deny the decree if it believes the marriage hasn't irretrievably broken down. The courts duty therefore as set out under section 2(2) and (3) of Act 367 is to inquire into two matters a. On a petition for divorce the court shall inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. b. 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. 3 Section 2 (1) of Act367 provides the various circumstances proof of which will ground an order dissolving a marriage. The law provides as follows: 2(1) for the purposes 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; 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 courts is satisfied that it has so 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 or f. That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. EVALUATION. 4 It is important to note that after the petition was served on the respondent he appeared before the court once on the 20th day of December 2023 where the court ordered he files his necessary processes but failed to do same and also failed to appear before the court despite series of hearing notices served on him. As such on the 21st day of March 2023, this honourable court called on the petitioner to open her case. Order 25 rule 2(a) of the C.I 59 states: “Where an action is called for trial and a party fail to attend, the trial magistrate may (a) Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim if any and allow the plaintiff to prove the claim……” Similarly in the case of REPUBLIC. V CIRCUIT COURT JUDGE EX PARTE DZAKA (1984-86) 1GLR 741 at holding 1 the court held “……. situations where both parties were aware of or had been served with hearing notice and yet one party failed to appear at trial, in such a case, the party who failed to appear could be said to have deliberately abstained from taking advantage of an opportunity to be heard and no breach of the audi alteram partem rule could be said to have

occurred……” Base on the above position of the law, the court calling on the petitioner to open her case was in order. The petitioner’s reason for the aforementioned view that the marriage has broken down beyond reconciliation is that, according to her, there is infidelity on the part of the respondent. She added that the respondent is into extra marital affairs with other 5 women. She attached the Whatsapp conversations between the respondent and three other girlfriends, as exhibits B, B1 and B2 respectively. The petitioner added that the respondent informed her he does not want any child with her again without offering any tangible reason for same as such the respondent has stopped having sexual intercourse with her to avoid any pregnancy. Petitioner avers, for the past one year, both parties have not lived as husband and wife and all attempts by family members and church elders to settle their differences have proved futile. Petitioner added, the respondent informed her that he does not love her again as such he is no more interested in the marriage. She added that the conduct of the respondent has caused her great pain, embarrassment and betrayal as such the respondent has behaved in a way that she cannot reasonably live with him as husband and wife and prays the court for a decree of dissolution of the marriage contracted between them and custody of the child of the

marriage granted to her. She also prays the court for the school fees and medical bills of the child of the marriage to be paid by the respondent and prays the respondent maintain the child of the marriage with an amount of GHC 2,000.00 monthly. Although petitioner seeks ancillary reliefs, it's important to clarify that these ancillary reliefs are subservient to the primary relief for the dissolution of the marriage. The court will first address the issue of marriage dissolution before considering any ancillary matters. The key question at hand is whether the marriage between the parties has reached a state of irreparable breakdown. In a divorce proceeding, it's crucial for the court to thoroughly assess all the evidence presented, rather than simply accepting one party's claim of a broken marriage. The court's evaluation should determine if the evidence aligns with any of the grounds specified in section 2 of the Matrimonial Causes Act (MCA). 6 It is prudent to note that as stated supra, the respondent refused to testify as he failed to appear in court despite hearing notices served on him. In line with the legal precedent set in FORI V AYIREBI (1966) GLR 627 SC, it is established that when a party makes an unchallenged averment, no further evidence or issues need to be addressed on that particular matter. Additionally, when a party presents material evidence that remains

unchallenged during cross-examination, there is no requirement to provide additional evidence to support that fact. This principle is further supported by the case of TAKORADI FLOUR MILLS V SAMIR FARIS (2005- 2006) SCGLR 882. Therefore, the court accepts as factual all the averments in the evidence of the petitioner that indeed the respondent is having extra marital affairs, and has intentionally refused to have sexual intercourse with the petitioner because he does not want any more children. Aside that families from both sides have tried to resolve their differences but all proves futile. The court in addition accept as a fact, that the respondent is no more interested in the petitioner which indeed caused her immense pain, and embarrassment. In light of these circumstances, the court finds the respondent's behavior and conduct as listed above which same was unchallenged during cross examination, unreasonable. After a thorough analysis of the evidence presented by the petitioner, and considering the fact that it remains undisputed by the respondent, the court hereby determine that the marriage between the parties has indeed broken down beyond reconciliation. As the court has found supra, that both families on both sides have tried to resolve their differences and same proved futile shows the irreconcilable differences between them as such this court finds in terms of section

2(1) (f) of the Matrimonial causes Act, Act 367. 7 In the case of KOTEI V KOTEI (1972) 2GLR 172, the court held: “Once the facts are proved bringing the case within any of the facts set out in 2(1), a decree of dissolution should be pronounced unless the court thinks otherwise……….” On the totality of the evidence before the court, the court is satisfied that the marriage between the parties have broken down beyond reconciliation as such this court accordingly decree a dissolution of the marriage contracted between the parties on the 16th day of April 2016, with certificate number RMC/03/2016 per license number NCRKM/1355964 hereby cancelled. ANCILIARY RELIEFS. The petitioner per her reliefs prayed the court for custody of the child of the marriage be granted to the her. Section 45 of Act 560 the children Act sates that when it comes to custody, the court considers the best interest of the child and the importance of a young child being with her mother when making an order for custody or access. Considering the age of the child of the marriage, the petitioner is better placed to be granted custody of the child of the marriage. In the circumstance, this court hereby grant custody of the child of the marriage Valerie Aba Mayne 7 years of age to the petitioner with reasonable access to the respondent. The respondent has access to the child during weekends and school holidays. The

petitioner is also seeking for maintenance for the child. In granting maintenance, the court takes into account certain factors which includes the remuneration of the respondent, and the ability of the respondent to pay. Since there is no evidence of the remuneration of the respondent before the court, the court will award what is reasonable in the circumstance. In view of the foregoing this honorable court hereby order the respondent to pay an amount of GHC 2,000.00 monthly as maintenance for the child of the marriage in addition, the respondent is ordered to pay school fees and medical expenses of the child as and when the need arises. There will be no order as to cost, each party will bear their own cost of litigation. 8 (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE)

REPRESENTATION PETITIONER- APPEARED PRO SE RESPONDENT – ABSENT. Ladd*. 9