Koranteng Vrs Koranteng [2023] GHAHC 256 (30 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT THE DIVORCE & MATRIMONIAL COURT “2” ON 30TH MARCH, 2023 BY HER LADYSHIP JUSTICE MAVIS AKUA ANDOH (MRS). ======================================================= SUIT NO DM/0103/2021 SGT. PHILOMINA A KORANTENG ======== PETITIONER VRS ST. SGT EBENEZER KORANTENG ======== RESPONDENT PARTIES: ABSENT COUNSEL: DANIEL MENSAH GORMAN FOR THE PETITIONER. RESPONDENT WAS SELF-REPRESENTED. ======================================================= JUDGMENT ======================================================= BACKGROUND The Petitioner in an amended Petition filed on 24th July 2021, prayed for the dissolution of the marriage between the Petitioner and the Respondent on the ground that, the marriage had broken down beyond reconciliation and sought the following reliefs; a) The dissolution of the marriage celebrated between the parties on 27th August 2011 at ICGC Believer’s Temple, La Accra. b) Property settlement in terms of the following; I. One and half plot of land with an uncompleted building situated in Kasoa. II. Toyota Corolla Saloon car with registration number GS 8172-20. III. Hyundai Bus with registration number GS 5527. IV. An amount of Ten Thousand Ghana Cedis (GHC10, 000.00) being half of the proceeds from the sales of the KIA Frontier. c) Financial settlement. d) Any order(s) that this honourable Court shall deem appropriate. 1 | P a g e It is the case of the Petitioner that, she and the Respondent lawfully got married under the Ordinance on 27th August, 2011 at the International Central Gospel Church, (ICGC) Believers Temple, La Accra. The parties cohabited at Whistler Barracks Teshie in Accra after the marriage. They are both Soldiers in the Ghana Armed Forces. And there was no issue in the marriage. There was a previous Petition for the dissolution of the marriage sometime in 2014, but the parties subsequently reconciled due to the interventions from family and friends. The Petitioner averred in her petition amongst others that, the Respondent had committed adultery and by virtue of the adultery, finds it intolerable to live with him, and that the Respondent on 22nd August 2020 went ahead and performed all rites necessary for the contraction of marriage under the Ashanti custom in Kumasi for a certain Akosua Achiaa against the insistence of Petitioner and other well-meaning persons. The Petitioner further averred that, she feels slighted by the Respondent and so finds the sight of the Respondent repulsive that she caused him to be evicted from the military accommodation they occupy. The Marriage between the Parties, the Petitioner claimed has broken down beyond reconciliation. The Respondent after much delay, entered appearance on 14th November 2022, and as well filed a 30 -paragraphed Answer and Cross Petition. The Respondent in his Answer admitted some material particulars contained in the Petition, but denied some. The Respondent in his Answer particularly admitted the Petitioner’s claim that she had heard the Respondent was arranging to marry a certain Akosua Achiaa whom he had impregnated. But he denied that he had performed any marriage rites with another lady. The Respondent also made some specific claims regarding the breakdown of the marriage. The Respondent further admitted that, the parties have proven to be unable to reconcile their differences resulting in constant quarrels and aggression towards each other. attracting attention and unsavory comments from both subordinates and superiors in the Barracks where they lived, The Respondent admitted that, there was every indication that the marriage between the parties had broken down beyond reconciliation and cross petitioned as follows; 1. That the marriage celebrated between the parties be dissolved. 2 | P a g e 2. The Petitioner should contribute to pay off outstanding debt of GHC164, 000.00. The Petitioner did not file a Reply to the Respondent’s Answer. The matter was set down for trial on 22nd March 2021. The parties filed their respective witness statements and pretrial check lists. Prior to the commencement of trial, the parties mutually agreed, to explore the possibility of an out of Court settlement regarding the ancillary reliefs sought by both parties. The parties executed Terms of Settlement which was filed on 10th February, 2023. The Court took evidence to satisfy itself that the marriage has broken down beyond reconciliation. The only issue to be determined by the court, is whether or not the marriage has indeed broken down beyond reconciliation. Prior to the Court taking evidence to satisfy itself that the marriage had broken down, the Petitioner informed the Court through her Counsel that, she would be away for peacekeeping duties and so she would not be available to give her evidence. On the trial date therefore, since the Petitioner was not available to give her evidence, her Witness statement and supplementary witness statement which had been filed on 16th April, 2021 and 27th May 2021 respectively were put in as hearsay evidence by her Counsel in accordance with Order 32 Rule 3E (1) of C. I 87 as amended. The Court therefore, took evidence from the Respondent to satisfy itself that the marriage had indeed broken down beyond reconciliation warranting its dissolution. ANALYSIS. It is trite learning that, he who asserts must prove. In Ababio V Akwasi 111 (1994-95) 2 GBR, @ 774 it was held that the general principle of law is that; “it is the duty of a Plaintiff to prove his case, that is, he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it…” This principle of law finds a correlation in the statutory expression in the relevant Sections of the Evidence Act, (NRCD 323) Specifically Sections 10, 11, 12 and 14 of the Evidence Act. In Bisi V Tabiri [1987-88] 1 GLR 360, it was held that “The standard of proof required of a Plaintiff in a civil action, was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”. 3 | P a g e At the trial, the Respondent gave evidence himself. Since he was not represented by Counsel he was led to give his evidence by the Court. He testified on oath and gave evidence via his witness statement. Per his witness statement the Respondent stated that the main challenge in their marriage was their inability to have a child of their own notwithstanding all attempts made including artificial insemination all of which proved futile and the Petitioner also refused to agree to adopt a child and insisted on having a child of her own. He further testified that considering the extent of acrimony between them, there was every indication that the marriage between them had broken down beyond reconciliation, and prayed the court for a dissolution of the marriage. During cross examination of the Respondent, by Counsel for the Petitioner, the Respondent expatiated on some of the problems the parties faced in their marriage that brought about the breakdown of the marriage such as, the Respondent having a child with another lady. He also intimated to the Court that, he had cross petitioned for the dissolution of the marriage because the marriage was beyond repairs and that the Petitioner was aware that he had had a child out of wedlock. And to him, the marriage has indeed broken down beyond reconciliation. As indicated earlier, the Petitioner was not present in Court to give evidence as the Court was told that she was away for peacekeeping duties. Accordingly, the witness statement as well as the supplementary witness statement of the Petitioner filed on 16th April 2021 and 27th May 2021 were put in as hearsay evidence and same expunged from the records. Legal position of the law regarding the dissolution of marriages in Ghana? Section 1 (2) of the Matrimonial Causes Act of Ghana, (1971) Act 367, stipulates that, “the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. Section 2(1) of the said Act, stipulates 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 grounds set out in Section 2(1) (a-f) in the said Act, of which Section 1(a) stipulates that, the Respondent has committed adultery and that by reason of the adultery the Petitioner finds it intolerable to live with the Respondent and Section (f)also stipulates that the parties to the marriage have, after diligent efforts, been unable to reconcile their differences. 4 | P a g e Section 2 (3) of Act 367 supra, stipulates 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”. In the case of Mensah v Mensah [1972] 2 GLR @ page 198, it was stated 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 behavior including the history of the marriage. It is always a question of fact. It is whether the Petitioner can reasonably be expected to live with the Respondent, and not whether the Petitioner indeed finds it intolerable to do so. The answer must be related to both circumstances of the Petitioner and the Respondent and it is eminently a question of fact in each case. The conduct complained of must be grave and weighty and mere trivialities will not suffice, for Act 367 is not a Casanova’s charter, the test is objective”. Also in the case of Knusden v Knusden [1976] 1 GLR 204 it was held that; “The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity, or of a persistent course of conduct or of a series of acts of differing kinds, none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so”. The Petitioner is relying on adultery as the reason for the breakdown of the marriage. As the Petitioner, the onus would have been on her to prove this claim by giving evidence to prove that. However, she was not available to prove same. Nevertheless, The Respondent, through his own averments in his Answer and witness statement and during cross examination by Counsel for the Petitioner admitted before this court that he had impregnated and has had another child with another lady which the Petitioner was aware of and that their marriage had broken down as it was beyond repairs. It is trite knowledge that because it is difficult to catch offenders in the act, adultery may be inferred from circumstantial evidence. The circumstantial evidence must be strong enough for the Courts to infer adultery. Adultery may also be proved through means such birth of a child, voluntary confession, venereal disease and when caught in the act. In Adjetey and another V Adjetey [1973] 1 GLR @ pages 216-221, the court stated that; “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 certainty…” 5 | P a g e In the Adjetey case supra, the circumstantial evidence was strong and weighty enough and this led the Court to conclude that adultery had been committed. From the pleadings filed and from the evidence adduced at the trial, even though it was one sided, it is evident that the marriage has broken down beyond reconciliation under Section 2(1) (a) and (f) of Act 367 supra. Also, from the evidence adduced before this Court, The Respondent has satisfied the Court that the marriage has irretrievably broken down and should be dissolved as the marriage is beyond repairs with no chance of reconciliation. The Respondent having himself admitted to having committed adultery in the course of the marriage and having a baby, this admission does not call for further evidence to prove this claim. As such, the Court accepts this as a true uncontroverted fact which has resulted in the marriage breaking down. Giving a clear indication that the marriage between the parties has indeed broken down beyond reconciliation. From the evidence adduced, from the Respondent’s own averments in his Answer and admissions during cross examination, I find that the Respondent has committed adultery which the Petitioner has indicated in her pleadings that as a result thereof, she finds it intolerable to live with Respondent as his wife. Thus satisfying Section 2 (1) of Act 367. Accordingly, on the totality of the evidence adduced by this Court, I am satisfied that the marriage celebrated between the parties has indeed broken down beyond reconciliation. CONCLUSION Accordingly, it is hereby decreed that the marriage celebrated between the Petitioner and the Respondent on 27th August 2011 at the ICGC Believers Temple La, Accra with Certificate Number ICGC –LA 012/20 and License Number AMA. 5921/2011 evidenced by Exhibit “A”, BE AND IS HEREBY DISSOLVED forthwith and the said marriage Certificate is cancelled. A copy of the divorce Certificate should be served on the Registrar of marriages by the Parties for the amendment of the records thereof. As indicated earlier in this judgment, the Parties mutually agreed to explore the possibility of an out of Court settlement in relation to the ancillary reliefs sought by both parties. The parties agreed on and settled the ancillaries based on which, they filed their Terms of Settlement on 10th February 2023. 6 | P a g e TERMS OF SETTLEMENT The Terms of Settlement signed by the Parties and filed on 10th February 2023 is hereby adopted as the Consent Judgment of the Court. The parties agreed that upon the dissolution of the marriage; I. One and half plots of land with an uncompleted building thereon situate at Kasoa in the Central Region of Ghana shall be settled in favor of the Petitioner. II. Any other order(s) that this honorable court shall deem fit. III. That this agreement shall be entered by the honorable Court as its Judgment in this matter. (SGD) MAVIS AKUA ANDOH (MRS.) JUSTICE OF THE HIGH COURT 7 | P a g e