Mensah Vrs Essilfie [2023] GHADC 599 (15 March 2023)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON THE 15H DAY OF MARCH, 2023 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ: SUIT NO. A4/302/2022 AMOS ANIM MENSAH ……… PETITIONER ANAJI- ESTATE TAKORADI VS AUGUSTINA ESSILFIE ----- RESPONDENT ANAJI ESTATE TAKORADI -------------------------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------------------- The petitioner through petitioned for dissolution of the marriage contracted between himand the respondent and sought for a decree of dissolution of the marriage contracted between them. Petitioner also sought for reasonable access to the son of the marriage. The petitioner avers, he got married to the respondent under the ordinance CAP 127 in December 2018. With one issue of the marriage Brain Papa Kweku Anim Mensah age 3years old. According to the petitioner, after the marriage, they cohabited at Anaji Estate Takoradi. Petitioner avers the marriage between him and the respondent has broken down beyond reconciliation. The petitioner’s assertion for the aforementioned view is that, there are several reasons which made him file for a decree of dissolution of the marriage between him and the respondent which includes, lack of respect the respondent has for his mother as well as him. He further avers the respondent does not respect him as a husband and father of their son. Respondent rains insult on him using unfavorable words to wit: “irresponsible husband and father, foolish man, Ashawo which literally mean he has sexual intercourse with women indiscriminately”. According to the petitioner when the court referred them to Alternative Dispute Resolution to attempt settlement, he paid an amount of GHC3,000.00 to the respondent been her contribution towards their wedding ceremony. Petitioner further indicated, respondent went to his mother’s house which is also the mother- in-law of the respondent with a threatened statement to wit: warn your son to pay my money else (respondent) can’t guarantee what will happen to the petitioner because she has already packed all pay (SIC) belongings,” According to petitioner, the respondent, has no regret or remorse to render apology for her wrong doings the period that they lived together as husband and wife. Whenever he the petitioners mum prompt her to render apology, she replies that since she gets her housekeeping money from the petitioner, there is noneed for her to apologies. According to petitioner, the respondent in formed one pastor Martin who takes care of aged and sick mother that he the petitioner is immature as such not ready for marriage. According to petitioner, he is of a strong believe that Respondent has been having amorous relationship with her concubine (rich man) of which he chanced on their WhatsApp chat some time ago. He con fronted the respondent his wife about same but she indicated to him, she never asked him to go through her phone. The respondent after been served with the petition filed an answer to same where she avers, she wishes a decree of dissolution of the marriage not be granted by the court for the sake of the child of the marriage however if petitioner insists on the divorce, she has not objection to same. According to the respondent, they got married under CAP 127 in December 2018. After marriage they cohabited at Anaji Takoradi and they have one issue of the marriage Brain Anim Mensah aged 3years respectively. Respondent avers, a misunderstanding ensues between them somewhere September 2021 which resulted in exchange of words. According to the respondent, after the incident, she has begged the petitioner to forgive her but petitioner has declined to accept her apology. Their church pastor has tried to resolve their differences but petitioner is adamant two any resolution. In addition, her parents have tried to resolve their differences but all proved futile. Respondent avers, communication has broken down between them for over a year a now and no sexual intercourse for over a year. Respondent further avers, it is never true that she has been disrespectful towards the petitioner until the very day they quarreled because of misunderstanding. She therefore wishes the court does not grant a decree of dissolution of the marriage between her and the petitioner for the sake of the child of the marriage. But if petitioner insist on the dissolution, then she has no objection to same. The issue for determination in this suit is whether or not the marriage between the parties has broken down beyond reconciliation. The petitioner bears the burden of proof on the balance of the probabilities that the marriage between him and the respondent has broken down beyond reconciliation. It is trite law that he who alleges must prove. In the case of ABABIO V AKWASI III (1994-1995) 2GBR, 774, the court held that: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., 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. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not his losses on that particular issue.” Similarly, in the case of BISI V TABIRI (1987-1988) 1GLR 360 the court stated thus: “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”. Although the petitioner, sought for ancillary relief, the ancillary relief, is subservient to the relief for dissolution of the marriage as such same cannot be granted until the relief for dissolution is granted. I shall therefore determine the issue for the dissolution of the party’s marriage before I deal with the issue of ancillary relief. The question is, has the marriage between the parties broken down beyond reconciliation, if so then then petitioner is entitled to a decree of dissolution of their marriage. It is trite that a court hearing a petition for divorce, is obligated to carefully consider all the evidence before it as a mere assertion by one party that the marriage has broken down. The court must consider whether the evidence adduce situate the case of the petitioner and respondent cross petition for dissolution of marriage within any of the grounds in section 2 of the MCA. Per section 1(2) of the Matrimonial Causes Act, Act 367 hereafter referred to as the MCA, the sole ground for the grant of divorce is that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation, any of the facts enumerated under section 2(1) (a) to (f) of the MCA must be proved by the petitioner and or the respondent in their respective evidence. This was explained in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) at page 202 where the respected judge said “From the relevant sections of the Matrimonial Causes Act 1971 Act 367 namely sections 1(2) and 2(1) and (3) the court ought to grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory on the petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation obviously on all evidence. Having establish these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation.” The petitioner alleges in his petition to the court, that the respondent has no respect for him as a husband and father of her son. She rains insults on her by calling him names such as foolish man, Ashawo which literally means someone who engage in sexual intercourse with multiple partners. In addition, petitioner avers, the respondent does not respect not only him but his mother as well who happens to be the mother-in-law of the respondent. The respondent has no remorse for her wrong doings and whenever she is asked to apologies, she makes statements to the effect that there is no need to apologies once she gets her house keeping money from the petitioner. Petitioner further indicated to the court that respondent told one Pastor Martin who takes care of his aged mother that he the petitioner is immature and not ready for marriage. Petitioner indicated in his petition to the court that there have been several attempts to settle their differences but all proved futile. It is worthy of note that the respondent failed to cross examine the petitioner on his assertion. In the case of In Re Presidential Election petition: Akuffo Addo & 2ors (NO.4) v Mahama & 2 Ors. (No. 4) (2013) SCGLR (special edition) 73 at page 425 decided: “I accept the proposition of law that when evidence led against a party is unchallenged under cross examination, the court is bound to accept that evidence”. Similarly in the case of Ashanti Gold co. ltd v Westchester Resources Ltd (2013) 56 GMJ 84 at page 128, Korbieh J. A also decided: “the law is that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side.” See also the case of Takoradi flour Mills v Samir Faris (2005-2006) SCGLR 882 at page 890 and Fori v Ayirebi (1966) GLR 627 S. C Base on the above position of the law, the court accepts the assertion of the petitioner. The court finds that calling your husband names and raining insults on him couple with lack of remorse to apologies, the court finds that the respondent behaved unreasonably. The respondent on the other hand is ad idem with the petitioner that a misunderstanding ensued between them for which they failed to resolve. Respondent avers, it is never true that she is disrespectful to the petitioner. After the said misunderstandings she rendered apology to the petitioner but he failed to accept the said apology. Respondent avers there has been no communication between them for over a year as well as no sexual intercourse for over a year now. According to the respondent her parents and church pastor has tried to settle their differences but same proved futile. The evidence before the court shows that the parties failed to resolve their differences thereby causing a wear and tear of their marriage life. Both parties admitted that there have been several attempts at settlement by both families but all proved futile. The failure of families and others to settle their differences proves the irreconcilable differences between the parties. In the circumstance I so find per section 2 (1) (d) of the MCA. 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……….” The court per the evidence before it, is satisfied that the marriage between the parties has broken down beyond reconciliation. In view of the foregoing this court accordingly decree a dissolution of the marriage contracted between the parties on the 15th day of December 2018 per the marriage certificate filed to the court with certificate no 840/2018 with licensed number STMA/ RM/ 1524/2018 hereby cancelled. In respect of the ancillary reliefs, the petitioner is seeking for reasonable access to the child of the marriage Brain Papa Kwaku Anim Mensah respectively. The respondent on the other hand is seeking for custody of the child of the marriage and maintenance for the child of the marriage she however indicates to the court she does Not want any alimony or compensation from the petitioner. In the circumstance, the court hereby grants custody of the child of the marriage Brain Papa Kweku Anim Mensah to the respondent herein with reasonable access to the petitioner. The petitioner can go for the child and spend time with him during weekends but to make sure to return the child latest by 3pm on Sundays enable the child prepare for school in addition petitioner can go for the child during school holidays and vacations to spend time with the child but he is to make sure to return the child when school resumes to enable the child prepare for school. Respondent prays the court for maintenance of the child. In awarding maintenance, the court considers the remuneration of the party. However, since there is no evidence of the remuneration of the petitioner before the court the court will award what is fair in the circumstance. In view of the foregoing, the petitioner is ordered by the court to maintain the child of the marriage GHC 400.00 each month. In addition, the petitioner is to pay for all medical bills and school fess of the child of the marriage as and when the need arises. I make no order as to cost to foster goodwill between the parties. I live the parties with this Egyptian proverb “a beautiful thing is never perfect “ (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) REPRESENTATION PARTIES APPEARED PRO SE. 8