Nketia Vrs Yarboye [2023] GHADC 654 (20 March 2023)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON THE 20TH DAY OF MARCH 2023 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ: SUIT NO. A4/ 215/ 2022 HENRY KWABENA NKETIA … PETITIONER PLOT NO. 104 AIRPORT RIDGE TAKORADI VS HARRIET YARBOYE … RESPONDENT PLOT NO. 104 AIRPORT RIDGE TAKORADI ------------------------------------------------------------------------------------ -------------------------------------------------------------------------------------------- JUDGMENT The petitioner speaking through an attorney with the power of Attorney in evidence as Exhibit A, petitioned for dissolution of the marriage contracted between himand the respondent on the 10thday of May 2008, at the All-Saint Anglican Church, Takoradi. After the marriage the parties cohabited at Airport Ridge Takoradi with one issue of the marriage Nana Kobina Nketia age 11years of age respectively. Petitioner sought for reasonable access of the child of the marriage. According to the petitioner the marriage between him and the respondent has broken down beyond reconciliation and sought for the dissolution of same. The respondent after been served with the petition filed an answer to same where she cross petitioned for dissolution of the marriage contracted between her and the petitioner. According to the respondent, the marriage between her and the petitioner has broken down beyond reconciliation. The petitioner’s assertion for the aforementioned view that the marriage has broken down beyond reconciliation is that, since 2010, they have not been able to live as husband and wife due to their inability to resolve their differences. According to petitioner, during the marriage, there have been abuses, insults and quarrels which has transcend to the extended family. He further avers, the problems between them have not been resolved by either family since 2010 till date. Petitioner indicated, that the respondent is extravagant and spends money indiscriminately without any course. According to him, the respondent is happily living with another man and due to the above reasons, they have mutually agreed the marriage be dissolved. The respondent on the other hand speaking through an attorney with the power of attorney in evidence as exhibit 1, avers, she and the petitioner married under the ordinance on the 10th day of May ,2008 at All Saints Anglican Church, Takoradi with one child of the marriage Nana Kobina Nketsia 11years of age respectively. After the marriage, they cohabited at Airport Ridge Takoradi. The respondent cross petition for dissolution of the marriage and avers, the marriage between her and the petitioner has broken down beyond reconciliation and sought for a decree of dissolution of same. Respondent avers, the petitioner picks quarrel over with her over every little and trivial issue, that she does not have any peace in the marriage. According to the respondent, the petitioner always threatens divorce and beats her always. Respondent avers, the petitioner left the matrimonial home due to the incompatibility between the parties. Respondent further avers, for the past 10years, they have not lived as husband and wife and all attempts by both families to settle their differences has proved futile. According to her the marriage between her and the respondent has proved futile. She therefore seeks for custody of the child of the marriage with reasonable access to the petitioner. According to her both parties have agreed to jointly cater for the needs and necessaries of the child of the marriage. She therefore prays for a decree of dissolution of their marriage. The question that this court need to resolve is whether or not the marriage between the parties has broken down beyond reconciliation. The petitioner bears the burden of proof to satisfy the court that indeed the marriage between him and the respondent has broken down beyond reconciliation. The respondent bears the same burden to also proof to the satisfaction of the court that the marriage between her and the respondent has broken down beyond reconciliation in respect of her cross petition. 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 and the respondent, sought for ancillary reliefs, the ancillary reliefs, are 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. 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 principle has always been that a court hearing a petition for divorce is under the duty 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 adduced situate the case of the petitioner and respondent (if the respondent cross petitioned for dissolution of the marriage) within any of the grounds in section 2 of the MCA. According to the petitioner, the marriage between him and the respondent has broken down beyond reconciliation. He avers, they have not lived together as husband and wife for about 10years thus since 2010. He further avers there have been abuses, quarrel and insults in the family and all attempts by the two families to resolve their differences has proofed futile he indicated the respondent now stays with another man. It is worthy of note that the respondent attorney elected not to cross examine the petitioner on his assertions. 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 the parties have not lived as husband and wife for 10years. In addition, the court further finds that the respondent committed Adultery by staying with a different man whiles she is still married to the respondent. During the cross examination of the respondent by counsel of the petitioner this is what transpired. Q: Are you aware that the respondent. Currently have a child with a different man? A: Yes Q: According to paragraph 10 of your witness statement you indicated for 10years the parties have not lived as husband and wife is that correct? A: Yes Q: And you indicate it as a result of beatings and abuses from petitioner is that so? A: Yes Q: you agree with me that the respondent moved out of the matrimonial home and deserted the petitioner for a very longtime? A: Yes Q: And she is currently living with another man? A: Yes, she is married. She married under the custom. The above answers given by the attorney of the respondent supports the assertion of the petitioner where he indicated the respondent lives with another man, and they have not lived together as husband and wife for 10years. Base on the above answers the court finds adultery on the part of the respondent. Section 2 (1) (a) of the MCA states that: “a petitioner may rely on the fact that the respondent has committed adultery and the fact that as a result of the adultery he or she finds it intolerable to live with the respondent, to prove that a marriage has broken down beyond reconciliation”. The MCA defines adultery as follows: “Voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse” Because direct evidence is not easy to obtain adultery may be inferred from circumstances surrounding a case. The act of sexual intercourse does not have to be proved. The presence of disposition and opportunity may lead a court to conclude that adultery has been committed. See the case of ADJETEY V ADJETEY (1973) GLR 216. From the facts of this case, the respondent giving birth to another man’s child whiles living with the said person, disposition and opportunity has been proved as such the court finds adultery on the part of the respondent. The petitioner in his statement indicated he prays for a dissolution of the marriage as he can’t reasonably be expected to live with the respondent. The court also finds desertion of the matrimonial home by the respondent. The MCA defines desertion as“theunjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently. Section 2(1) (c) of the MCA requires the petitioner to establish that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. In fact, the respondent attorney admitted having deserted her matrimonial home. During the cross examination of the respondent attorney by the counsel for the petitioner this is what transpired. Q: you agree with me that the respondent moved out of the matrimonial home and deserted the petitioner for a very long time? A: yes, My Lord. From the above answers of the respondent attorney, the court finds that the respondent indeed deserted the matrimonial home. The respondent on the other hand, avers the petitioner beats her and picks quarrel with her on every little trivial issue. According to her they have not lived as husband-and-wife foe the past 10yearsaccording to her she moved out of the matrimonial home due to the fact of incompatibility between the parties. She indicated all attempts by their respective families to resolve their differences has proved futile she therefore prays for a decree of dissolution of their marriage. Again, as found supra by this court, the respondent accepted she deserted the matrimonial home because of the incompatibility between the parties and subsequent upon that they have not lived as husband and wife for 10years all attempts by families to resolve their differences has proved futile. The petitioner never challenged the assertion that she beats the respondent either under cross examination neither did he led evidence to the contrary base on this the court accepts the assertion of the respondent in respect of same. Subjecting your wife to beatings is unreasonable on the part of the petitioner. Respondent attorney indicated to the court that the respondent is married under custom. It must be emphasized that ordinance marriage and customary marriage are mutually exclusive the two cannot co-exist at the same time as such in effect, the custom marriage of the respondent to another man as indicated by the respondent attorney is invalid in the eyes of the law. In the case of SAMUEL ADRA V ECG (2018) 119 GMJ 143@ 184 C. A per Dzamefe J. A stated: “when a party lead evidence which is not challenged by his opponent in cross examination, nor does the opponent tender evidence to the contrary, those facts depose to are deemed to have been admitted by the opponent and must be accepted by the court”. From the totality of the evidence before the court and the evaluations made supra, the court find as stated supra that the respondent committed adultery, I so find in terms of section 2 (1) (a) of the MCA. The court find that the respondent deserted the matrimonial home and I so find per section 2 (1) (c) of the MCA. The court finds that the petitioner subjected the respondent to beatings and I so find in terms of section 2 (1) (B) OF THE MCA. Both parties are ad idem that the both families on either side have tried to settle their differences but all proved futile. I so find in terms of section 2(1)(F) 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……….” On the totality of the evidence the court 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 10th day of May 2008. In respect of the ancillary reliefs, respondent is seeking for custody of the child of the marriage Nana Kobina Nketia 11years of age. Petitioner on the other hand does not object to the granting of the custody of the child to the respondent. In the circumstance custody of the child of the marriage Nana Kobina Nketia 11years of age is hereby granted to the respondent with reasonable access to the petitioner. The petitioner can go for the child during weekends and school vacation and holidays to spend time with him. Since the respondent indicated that both parties have agreed to jointly cater for the needs and necessaries of the child which said assertion was not objected to by the petitioner the court accepts same. See the case of SAMUEL ADRAH V ECG SUPRA. There will be order as to cost to foster goodwill between the parties. (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) 10