Nyowah Vrs Awotwe [2023] GHADC 68 (16 March 2023)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 16TH DAY OF MARCH, 2023 __________________________________________________________________ SUIT NO. A4/64/2022 SAMUEL NYOWAH aka SAMUEL OFORI - PETITIONER V MERCY AWOTWE - RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 10.52 AM PETITIONER RESPONDENT - - PRESENT PRESENT PARTIES UNREPRESENTED ___________________________________________________________________ JUDGMENT By a petition filed on 7/6/2022, the petitioner claims the marriage celebrated between the parties on the 16th of October 1999 has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent hence Petitioner prays for the dissolution of the marriage. The Respondent filed an Answer on 14/11/2022 denying that she has behaved unreasonably. She cross-petitioned as follows: 1. That the marriages celebrated between the parties be dissolved, as the Respondent is currently living with another woman 2. Further orders to compel Petitioner to pay 5 years maintenance arrears of GH₵9,000.00 to the Respondent, that is, GH₵5.00 a day 3. Additional orders to compel Petitioner to pay alimony to the Petitioner. The parties filed their respective witness statements pursuant to an order of the court and none of them called a witness. Petitioner tendered Exhibits A and B the marriage certificate and a Loan Agreement respectively in support of his case. PETITIONER’S CASE It is the case of the Petitioner that the parties have been married for over 22 years and they have four children. After the marriage, the parties cohabited at Beach Road, Takoradi. The petitioner avers that during the marriage he set up the Respondent in a trade however the Respondent could not hold onto any capital that she was advanced and misused same thereby collapsing the business. Petitioner says he even contracted a loan facility from Lower Pra Rural Bank to augment her capital but that also did not work out. Petitioner tendered Exhibit B in support. Subsequently, there was a serious misunderstanding between the Respondent and Petitioner’s mum which resulted in a quarrel as a result of which the Respondent according to Petitioner left the matrimonial home for about 5 years. Petitioner avers Respondent later returned but failed to render an apology to the Petitioner’s mother and left the matrimonial home again. It is the case of the Petitioner that all attempts to get the Respondent back to the matrimonial home have failed and that for the past 5 years, the parties have not lived as husband and wife. Petitioner says that he was not even informed of the death of Respondent’s father and that he has lost trust and love for the Respondent and therefore prays for the dissolution of the marriage. CASE OF THE RESPONDENT The Respondent on the other hand denies having behaved unreasonably. She admits that the marriage has broken down beyond reconciliation but it is because the Petitioner has deserted the matrimonial home for the past five (5) years and is living comfortably with another woman. The Respondent avers that she has never had any misunderstanding with the mother of the Petitioner and at no point in time did she leave the matrimonial home and has still been living there to date. Respondent avers further that his family did not inform the Petitioner about the death of her father because the relationship between the parties and their respective families at the time was not cordial because of the cruel treatment meted out to her by the Petitioner. It is the case of the Respondent that her family made all attempts to reconcile the parties and for the Petitioner to return to the matrimonial home but that failed and so her family informed the Petitioner to take the necessary steps to dissolve the marriage if they were not ready for reconciliation, thus her cross-petition. The issues for determination at the end of the trial thus are: 1. Whether or not the Respondent deserted the matrimonial home? 2. Whether or not the Respondent behaved unreasonably by having an altercation with the mother of the Petitioner 3. Whether or not the Petitioner has committed adultery 4. Whether or not the marriage between the parties has broken down beyond reconciliation Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) states that the sole ground for granting a petition for divorce in Ghana shall be that the marriage has broken down beyond reconciliation. Section 2(1) of Act 367 stipulates the causes a petitioner must establish to prove that the marriage has broken down beyond reconciliation, simply paraphrased as following: adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort. It is material to point out that although the court may find the existence of one or more of the facts specified above, the law does not require the court to decree divorce unless it was satisfied on all the evidence, that the marriage has indeed broken down beyond reconciliation. It is trite law that the court must enquire as far as is reasonable into the reasons for the divorce and may either grant or refuse to decree a divorce after hearing. In divorce just like in all civil cases, the degree of proof required by law is that of a balance or preponderance of probabilities. See Section 12 (1) and (2) of the Evidence Act, 1975 (Act 323). In the case of Adwubeng V. Domfeh [1996-97] SCGLR 660, the Supreme Court held that “sections 11 (4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil actions was proof by a preponderance of probabilities – no exceptions were made”. As earlier stated, the petitioner grounds his reason for the dissolution on unreasonable behaviour and desertion. However, in her cross-petition, the Respondent alleges adultery on the part of the Petitioner. Both parties then had the burden to prove what they alleged. In determining what constitutes unreasonable behavior, the test to be applied is an objective one. Hayfron Benjamin J (as he then was) held in the case of Mensah v. Mensah (1972] 2 G. L. R. 198 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. The test is objective” The parties both testified themselves and did not call any witnesses. It is the case of the Petitioner that there was a misunderstanding between the Respondent and his mother which led to a quarrel between the parties. The Petitioner in his witness statement stated that this altercation ensued because his mother had visited the family and found that the Respondent was untidy; she did not wash the clothes of the Petitioner, the children, and even her own, and when his mother complained about the unpleasant situation a quarrel ensued between the parties and the Respondent failed to apologize to his mother. The Respondent on the other hand vehemently denies this claim. She stated further that she has never had a quarrel with his mother in law and the incident the Petitioner enumerated never took place for which reason the Petitioner is using the same as the reason for the dissolution of the marriage. Under cross-examination of the Petitioner on the 8th of February, 2023 the following questions were put to the Petitioner: Q. You stated in your witness statement paragraph 5 that I have an issue with your mother, I put it to you that is not true A. What I said is the truth Xxx Q. You also stated in your witness statement that I refused to wash your things and I am also a dirty woman, that statement is never correct. You have said all these things because you have no bases for the dissolution of this marriage, you said that to humiliate and embarrass me. A. That is not correct I must say the Petitioner whom the burden was to have proved what he alleges under section 11 of the Evidence Act failed to prove the same after the denial throughout the trial by the Respondent that she had an altercation. The key witness to the alleged incident was never called to testify in the matter. It is trite learning that where a party fails to call a witness key in support of his case where the issue requires the same but he fails, the ruling must go against him. The learned S. A Brobbey states on page 378 of his book PRACTICE & PROCEDURE IN THE TRIAL COURTS & TRIBUNALS OF GHANA thus; “In civil proceedings, the consequences of a party’s failure to call a material witness depend on the onus of proof placed on him by the facts of the case. If a party has to establish his case and therefore assumes the onus of proof, he must call witnesses material to establish that case. In the event, his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish that case: See NRCD 323, s11 Owusu V Tabiri [1987 -88] 1 GLR 287” The mother of the Petitioner who according to the Petitioner observed the untidiness of the Respondent for which the alleged altercation happened, as a result of which the Petitioner is now using same as his reason for the dissolution of their marriage, was never called. I find on the evidence that nothing of the sort happened. According to the Petitioner, the situation escalated for which reason the Respondent left the matrimonial home. However, the Respondent challenged the Petitioner throughout the trial and also under cross about the fact that he, the Petitioner rather deserted the matrimonial home and that she was still living in the matrimonial home. The following ensued on that same day Q. You also stated in your witness statement that I have left the matrimonial home, I put it to you I have not left, you rather left A. If it is Tanokrom you are referring to, you are right I left the matrimonial home because we were living in a single room with our mature children and I was not comfortable, I, therefore, suggested to the Respondent that we should look for an additional house but she did not agree and that was why I left the matrimonial home. Q. The witness is not being truthful in respect of the additional house he is talking about, I put that to him A. I am telling this court the whole truth” From the above, the matrimonial home is the Tanokrom place where the Respondent still lives. The Petitioner currently lives at beach road which is not the matrimonial home. According to him, he left because the place had become too small for him. Clearly, from the above, the Petitioner admits that he was the one who left the matrimonial home yet in his earlier evidence he wanted the court to believe that it was the Respondent who deserted the matrimonial home. In Frowd v Frowd [1904] P.177 Jeune P defined desertion as: “Desertion means the cessation of cohabitation brought about by the fault or act of the parties. Therefore, the conduct of the parties must be considered. If there is good cause or reasonable excuse, it seems to me there is no desertion in law”. In this instant case, it was the Petitioner who left the matrimonial home about five years ago. There is total cessation of cohabitation but this was brought about by the Petitioner himself and the reason he gave for leaving same in the midst of its denial by the Respondent cannot be said to be reasonable in my humble view. I, therefore, find on the totality of the evidence that it was the Petitioner who deserted the matrimonial home and not the Respondent. Very crucial to the above indeed, is the evidence that the Petitioner after leaving the matrimonial home is presently living with another woman and has even married her. In the witness statement of the Respondent at paragraph 3, below is what she stated “3. That Petitioner has violated the laws governing the ordinance marriage because our marriage has not been dissolved both customarily and the ordinance but Petitioner is currently living with another woman which according to reliable sources, Petitioner has taken some steps to marry her 4. That for the past five (5) years, Petitioner has been enjoying sexual intercourse with the said woman he is living with whiles Petitioner has denied me of such marriage affection” It must be noted that the above averments were never denied or challenged by the Petitioner after his vigorous cross-examination. This clearly implies the Petitioner acknowledges and admits the said averments. In TAKORADI FLOUR MIILS VRS SAMIR (2005-2006) SCGLR 882 it was held that in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court. See IBRAHIM VRS ABUBAKARI (2001-2002)1 GLR 540. Applying the above authority to the facts of the case, the failure of the Petitioner to cross-examine the Respondent on her evidence that the Petitioner is currently living with another woman and has deprived her of any marital affections is admitted by the Petitioner. That being the case it can conclusively be said that the Petitioner having deserted the Respondent and the matrimonial home further committed adultery by his act of living with another woman I so find. What is further clear from the evidence is that the parties have not lived together as husband and wife continuously for over 5 years preceding this Petition. Section 1(2)(e) of Act 367 stipulates that the fifth fact that can be proved to establish the breakdown of a marriage is “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” The learned William Ekow Daniels in his book “The Law on Family Relations in Ghana, 2019 @ page312 states that “The test to determine whether or not the parties are not living as husband and wife has no relation to the physical state of things such as houses or households, but rather it is to be considered from the point of view of whether there is absence of consortium or cessation of cohabitation”.(emphasis mine) From the evidence, there has been non-cohabitation and no sexual intercourse between the parties for over 5 years preceding this petition. In any case, the Petitioner is even living with another woman which implies an acknowledgment that he is not going back to the marriage for which reason he has instituted this action. Besides the above, the parties also say that numerous attempts at reconciliation have also failed. Certainly, there is sufficient evidence to justify a conclusion that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation having considered all the facts and evidence. The cross-petition of the Respondent succeeds. In the circumstances I hereby declare that the marriage celebrated between the parties on the 16th of October, 1999 has broken down beyond reconciliation and that same be and is hereby dissolved. It is ordered that a decree of divorce be granted; the marriage certificate with registration number CAC/WRA/12/1999 pursuant to Licence No. SAEMA/196/1999 is hereby cancelled. The Respondent is claiming maintenance arrears of GH₵9,000. It is her case that the Petitioner used to maintain her at GH₵5.00 a day before he left the matrimonial home and that since he left, she has had to maintain herself. The Petitioner on the other hand states that he had to contract a loan to set her up in a trade so she could also support the family but the Respondent could not sustain the trade hence he has nothing to give the Respondent by way of maintenance arrears. I must say that from the evidence the Respondent does not deny the assertion of the Petitioner that he set her up in a business to enable her to support the family. She rather says that she did not know the money that was given to her was a loan. But the question I pose is does it really matter whether or not it was a loan? To my mind all the Respondent had to do was to build up the trade yet she failed. Throughout the trial, she was silent about this. In the circumstance, I fail to give any maintenance arrears. DECISION 1. The marriage celebrated between the parties on the 16th of October, 1999 be and is hereby dissolved. It is ordered that a decree of divorce be granted; the marriage certificate with registration number CAC/WRA/12/1999 pursuant to Licence No. SAEMA/196/1999 is hereby canceled 2. The Petitioner is hereby ordered to pay the sum of GH₵4,000 as a financial provision to the Respondent within 6 months. 3. There is no order as to cost (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE 11