PARO VRS TETTEH (C5/136/23) [2024] GHACC 61 (26 January 2024)

IN THE CIRCUIT COURT “B”, TEMA, HELD ON FRIDAY THE 26TH DAY OF JANUARY, 2024, BEFORE HER HONOUR KLORKOR OKAI-MILLS (MRS), CIRCUIT COURT JUDGE SUIT NO. C5/136/23 PHILOMENA PARO ----- PETITIONER VRS. MALIK ADAMS TETTEH ----- RESPONDENT PARTIES PRESENT WILLIAM OKO OKORNOE ESQ. FOR THE PETITIONER PRESENT JUDGMENT FACTS: The uncontroverted facts of this case are that the petitioner, a Prison Officer and the respondent, a chartered accountant got married on Friday 26th January, 2018 under Part III of the Marriages Act, (1884-1985), Cap 127. Thereafter, the parties cohabited at Ashiaman Municipality. The parties have one issue, a six-year-old named Jesse Elliot Adams Tetteh. On 2nd August, 2023, the petitioner filed the instant petition for divorce alleging that the marriage celebrated between herself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. Dissolution of the marriage celebrated between the petitioner and the respondent on the 18th day of January, 2018. b. Custody of the issue of the marriage in favor of the petitioner and provision of accommodation by the Respondent for the issue. c. Order the respondent to maintain the issue of the marriage pending the determination of the suit and thereafter periodic maintenance as and when necessary for the wellbeing of the issue. d. Payment of school fees and health needs of the issue. e. Any further orders (s) as this Honorable Court may deem fit. The respondent entered appearance and filed an answer on 11th January, 2024 in which he admitted paragraphs 10, 11, 12 and 13 of the petitioner’s petition and stated that the respondent is not entitled to any of the reliefs she indicated in her petition. In the petition and the answer to the petition for divorce, the parties leveled accusations and counter accusations against each other. Whereas the petitioner blames the breakdown of the marriage on alleged unreasonable behavior and adultery on the part of the respondent, the respondent blames their marital woes on the unreasonable behaviour of the petitioner for. THE CASE OF THE PETITIONER Unreasonable behavior The particulars of unreasonable behaviour alleged by the petitioner are that the respondent has reneged on his duties by not caring for the emotional, financial or physical needs of the petitioner and the issue of the marriage. The Petitioner further avers that the respondent burnt their marriage certificate after a disagreement and insists on discussing their marital issues with his friends and his family instead of with her. Further to this, the petitioner accuses the respondent of shouting at her and threatening to divorce her without provocation. According to her, the respondent also continuously assaults her, verbally in front of the issue of the marriage and has disrespected the petitioner publicly. Adultery The petitioner accused the respondent of adultery in that the respondent had sex with another woman in their matrimonial bed which petitioner claims she personally witnessed; an incident which nearly caused her, her life and also became a subject of ridicule. Petitioner also avers that the respondent’s adulterous behavior is rampant to the point where she is at a risk of contracting sexually transmitted diseases if she continues to engage the respondent in any sexual activity. She further alleges that this dissolution of marriage is critical because the parties discovered that their genotypes are not compatible health wise only after they were married. Petitioner also adds that as a result of the parties’ medical incompatibility, she has suffered several miscarriages and other serious life threatening health complications. Petitioner indicates that all efforts by family members and mutual friends to intervene so the Parties can reconcile have proved futile since the Respondent had refused to be present at any of these meetings. THE CASE OF THE RESPONDENT The respondent denies the allegation of unreasonable behaviour and blamed the petitioner for the breakdown of the marriage averring that the marriage has broken down beyond reconciliation. The respondent avers that the petitioner is impatient with the respondent and complains about everything little issue in the marriage. The respondent further states that the petitioner declines to have any form of intimacy with him. According to him, the petitioner would insult him for no apparent reason causing him emotional stress and anxiety. Respondent further avers that the petitioner does not respect him nor accord him the authority that a responsible husband deserves. Interestingly, the respondent admitted paragraphs 10, 11, 12 and 13 of the petitioner’s petition. By admitting paragraph 11 of petitioner’s petition, the respondent confirmed that he is indeed involved in adulterous and amorous relationships with other women and he is not ready to walk away from them. Respondent also affirms petitioner’s assertions in paragraphs 12 and 13 of petitioner’s petition which states that after marriage the parties discovered that they were medically incompatible which has resulted in multiple miscarriages by the petitioner. Consequently, he states that the marriage between himself and the petitioner has broken down beyond reconciliation. He also affirms that all attempts by family and close friends to reconcile them has proved futile. SETTLEMENT During the pendency of the suit, the parties attempted settlement to resolve the ancillary issues and among other things agreed to the dissolution of the marriage celebrated between them. Consequently, the parties filed terms of settlement in the Registry of this Court on 11th January, 2024, to be adopted by the court as consent judgment on the ancillaries upon the dissolution of the marriage. The parties having filed terms of settlement, the sole issue for the determination of the court is whether the marriage has indeed broken down beyond reconciliation. LEGAL ISSUE Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. BURDEN OF PROOF It is trite learning that a party who asserts must prove that which he asserts on a balance of probabilities. In the case of Bank of West Africa Ltd. V. Ackun [1963] 1GLR 176, the Court held in its holding 2 that: “the onus of proof in civil cases depended on the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof.” The Supreme Court in the case of Sumaila Bielbiel (No.3) v. Adamu Dramani & Attorney-General [2012] 1 SCGLR 370, Date-Bah JSC (as he then was) clearly made a distinction between the burden of leading evidence and the burden of persuasion when he stated at page 371 as follows; “The distinction between the two burdens of proof, namely the “burden of persuasion” as defined in section 10(1) and the “burden of producing evidence” as defined in section 11(1) of the same Act, is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to begin leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily the burden of persuasion lies on the same party as bears the Burden of producing evidence.” Thus, a petition for divorce being a civil case, the petitioner bears the burden to prove the allegations contained in the petition for divorce on a balance of probabilities failing which the court may dismiss the petition for divorce. ANALYSIS Under section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to prove one of the six (6) facts set out in section 2(1) of Act 367, namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years, irreconcilable differences. In the case of Donkor v. Donkor [1982-1983] GLR 1158, the High Court, Accra, per Osei- Hwere J, held that: “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3), which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation…the petitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.” The parties and their lawyers are also mandated to inform the court of all attempts at reconciliation and the court shall refuse to grant a petition for divorce if there is a reasonable possibility for reconciliation. See Section 2(3) of Act 367. In the case of Adjetey& Anor. v. Adjetey [1973] 1 GLR 216, the court held in its holding 2 that: “On a proper construction of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367), the court could still refuse to grant a decree even where one or more of the facts set out in section 2 (1) had been established. It was 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 had broken down beyond reconciliation would not be enough.” The petitioner in the instant petition relies on adultery committed by the respondent. The onus is therefore on the petitioner to satisfy the court that the respondent has committed adultery and that by reason of the adultery, she finds it intolerable to live with her. Adultery is defined under Section 43 of Act 367 as “the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse.” In the case of Adjetey v. Adjetey [1973] GLR 216-221; in holding 1, the court stated the standard of proof for adultery in the following terms: “Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of probability. Direct evidence of adultery was rare. In nearly every case the fact of adultery was inferred from circumstances which by fair and necessary inference would lead to that conclusion. There must be proof of disposition and opportunity for committing adultery, but the conjunction of strong inclination with evidence of opportunity would not lead to an irrebuttable presumption that adultery had been committed, and likewise the court was not bound to infer adultery from evidence of opportunity alone.” Section 3 of the Matrimonial Causes Act, 1971(Act 367) states that the court shall disregard any period that the parties lived with each other after discovering the adultery with a view to effecting reconciliation if the period does not exceed six (6) months but where the period exceeds six (6) months in the aggregate, a party shall not be entitled to rely on the adultery to pray for dissolution of the marriage. Thus, to succeed, the petitioner must prove firstly that the respondent being a married man had sexual intercourse with another woman other than the petitioner, that the act of the sexual intercourse was voluntary, and that the petitioner has not lived with the respondent for an aggregate period of more than six months upon discovering the adultery and that she finds it intolerable to live with him after discovering the adultery. The petitioner testified that the respondent committed adultery by having sex with another woman on their matrimonial bed which the petitioner claims she personally witnessed which nearly resulted in petitioner losing her life. Petitioner also testified that the respondent’s nature of adultery knows no boundaries and that the petitioner is at risk of contracting sexually transmitted diseases from the respondent if she continues to engage him in any sexual activity. In the case of Quartey v. Quartey [1972] 1 GLR 6, the court per Kingley- Nyinah J. held that: “a court may act upon an admission of adultery even though there be no confirmatory proof of it, if the court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to a clear, distinct and unequivocal admission of adultery.” The respondent on his part vehemently denied the allegation of adultery in his answer to the petition. In his witness statement, the respondent did not directly address the allegation of adultery by the petitioner though she alleged this both in her petition and in her witness statement. Per the evidence before the court, the petitioner only alleged adultery on the part of the respondent but did not lead any evidence to substantiate the allegation. The court does not find that the marriage has broken down on the ground of adultery as respondent denied and it remains unproven. Unreasonable behavior The petitioner in the instant petition also set out to prove fact 2(b), namely, “that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent”. To succeed under section 2(1) (b) of Act 367, the petitioner must prove the conduct of the respondent constituting unreasonable behavior, and the fact that the petitioner cannot reasonably be expected to live with him as a result of the behaviour. In the case of Mensah v. Mensah [1972] 2 GLR 198, the court held in its holding 3, that: “In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova’s Charter.” Here, the petitioner repeated her averments of the conducts of the respondent she deems unreasonable. The petitioner catalogued the alleged unreasonable behaviors to be the respondent’s failure to provide for the petitioner, either financially, emotionally, or for the physical needs of the petitioner and the issue of the marriage. She also stated that the respondent destroyed their marriage certificate by burning it into ashes after a disagreement, respondent’s failure to discuss issues concerning their marriage rather preferring to discuss same with his close friends and petitioner’s family in addition to respondent frequently shouting at petitioner. The petitioner also testified that respondent unreasonably and persistently throughout the course of the marriage always threated petitioner with divorce without any form of provocation. Respondent is also alleged to continuously assault the petitioner verbally in front of the issue of the marriage and publicly disrespected the petitioner. The respondent, in his witness statement also averred that he has always loved the petitioner and the issue in the marriage and done his best to provide for the family over the years. Respondent denies embarrassing the petitioner in public and assert that petitioner has rather reneged on her duties by not caring for him emotionally, when necessary. Respondent also testified that his wife refuses to discuss her private issues with him, opting to do so with outsiders and he is always on the receiving end of insults from petitioner when things are not going well. Respondent testifies that although the parties love each other, he believes the marriage cannot be salvaged and things will not return to the good old days. He also states that all attempts by family and friends to reconcile the parties have proved futile. It can be inferred from the testimony of the parties and their conduct that there is a complete cessation of consortium vitae and the parties have not evinced an intention of reconciling their differences to resume cohabitation. This is particularly so because the petitioner in her grounds of adultery against the respondent stated that she believes that she is at a risk of contracting a sexually transmitted disease from the respondent; in a bid to protect herself from what she perceives as real danger, she clearly no longer engages in sexual relations with the respondent. The parties also agree that various attempts made by well-meaning family members and friends to reconcile their differences have proved futile. The breakdown of the marriage beyond reconciliation is also evidenced by the fact that the respondent did not oppose the dissolution of the marriage but cross-petitioned for divorce. Again, when the petition was pending and the parties attempted settlement, they both agreed that the marriage be dissolved since it has broken down beyond reconciliation. On the totality of the evidence led, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. CONCLUSION In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition and the cross-petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the Ordinance marriage celebrated between the petitioner and the respondent on 18th January, 2018. 2. The parties shall present the original copy of the marriage certificate to the Registrar of the court for cancellation. 3. The terms of settlement dated 27th December 2023, signed by the parties herein and the plaintiff’s lawyer and filed in the Registry of this court on 11th January, 2024 is hereby adopted as consent judgment on ancillary reliefs: a. Custody: children or issues of the marriage shall be given to the petitioner with reasonable access to the respondent as and when necessary. b. Maintenance & health needs: Parties shall contribute equally to the maintenance of the issue of the marriage who shall be in custody of the petitioner. Respondent shall provide a monthly amount of GHC400.00 for the maintenance and health needs of the issue of the marriage, and that, other maintenance cost, as and when necessary shall be borne by the petitioner. The maintenance cost herein stated shall be reviewed periodically by 25% on a yearly basis from the day of entry of judgment. Additionally, all other consequential matters, reasonably related to welfare, health needs and wellbeing of the issue shall be discussed and a collective decision taken thereon. c. Educational needs: settlement of school fees and other educational needs of the issue or child shall be the responsibility of the Respondent with nominal support from the petitioner. d. Accommodation: the petitioner who is in custody shall be responsible for the accommodation needs of the issue with support from the respondent. Miscellaneous a. These terms of settlement shall construe the entire agreement between the parties and supersede all previous agreements (oral and written correspondence between the parties). b. That the parties shall not bring any other claims concerning this petition or cross petition or any other claim, arising out of or in connection with this dispute which could have been raised in this dispute in any forum against each other except in respect of an event of default or any provision in these terms of settlement. c. The waiver, express or implied by either party right hereunder shall not constitute or be deemed as a waiver of any other right hereunder whether of a similar or dissimilar nature thereto d. These terms of settlement shall be subject to the usual default clause. e. These terms of settlement shall be adopted as consent judgment of the court. 4. There shall be no order as to costs. H/H KLORKOR OKAI-MILLS (MRS) (CIRCUIT COURT JUDGE) 13