OPOKU VRS HOOPER (A4/26/2023) [2023] GHADC 1166 (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. A4/26/2023 FREDERICK OPOKU. HOSPITAL ROAD DODOWA ACCRA PETITIONER VS FRANCISCA ABENA HOOPER AIRPORT RIDGE TAKORADI RESPONDENT JUDGMENT The petitioner filed a petition in November 2018 to dissolve their marriage, which was established under Cap 127 with no issue of the marriage. The petitioner asserts that their marriage with the respondent has irretrievably broken down. This belief stems from the challenges they encountered after marriage, including the respondent's mother expressing regret over their union. According to the petitioner, the respondent often mentioned having better suitors before meeting the petitioner and regretting the marriage. They attempted to resolve these issues through their pastors, but it proved unsuccessful as the respondent left their matrimonial home before a resolution could be reached. The petitioner's subsequent attempts to reconcile were in vain, as the respondent indicated a desire for both to move on with their lives. The petitioner also mentioned that during a meeting convened by his uncle to resolve their issues, which he couldn't attend, the respondent and her family presented drinks and rings to his uncle, symbolizing her disinterest in the marriage. Subsequently, he tried to schedule a meeting with the respondent's mother to resolve the differences, but she declined, asserting that the marriage had dissolved due to the symbolic gestures with the drinks and rings. Furthermore, the respondent's father, who was abroad, threatened to have him arrested if he attempted to contact the respondent. Despite numerous attempts to reconcile, the respondent made it clear she was done with the petitioner. The petitioner learned from one of the respondent's aunts that she was already married and had a child from that marriage. Consequently, he is seeking a court decree for the dissolution of their marriage, given that it has irreparably broken down, and the respondent is already married with a child, while their marriage still legally exists. In response to the petition, the respondent filed an answer in which she cross- petitioned for the dissolution of the marriage contracted under Ordinance CAP 127 on November 10, 2018. The respondent stated that on their wedding night, she had to plead and pressure the petitioner before he would engage in sexual activity with her. They lived together in Dodowa, but she frequently visited the petitioner in Takoradi during weekends due to her work commitments. However, during these visits, the petitioner greeted her coldly and expressed his unwillingness to have children with her, citing that he had impregnated someone else who was about to give birth. He also mentioned his intention to further his education and not impregnate the respondent. The respondent claimed that this behavior caused her emotional and psychological distress, as well as verbal abuse from the petitioner. The respondent further stated that on December 27, 2018, which was the third weekend after their marriage, the petitioner expelled her from their matrimonial home after he had explicitly told her not to visit him. She had called to inform him of her visit and ended up visiting him. According to her, the petitioner reported this to his pastor, and efforts were made to reconcile, but all attempts were in vain. She emphasized that they haven't lived together as husband and wife since December 27, 2018, when the petitioner expelled her from their matrimonial home. She also mentioned that she and her mother visited the petitioner's uncle and presented drinks and rings to him, with the petitioner's knowledge and approval. She asserted that there had been no physical intimacy or communication between her and the petitioner for the past four years. Due to these circumstances, she believed the marriage had irretrievably broken down and sought a decree of dissolution. Additionally, the respondent requested the repayment of a GHC9,600.00 loan she had taken for the petitioner, which he had promised to repay but had failed to do so. The main issue to be determined in this lawsuit is whether the marriage between the parties has broken down beyond the possibility of reconciliation. The petitioner is responsible for proving, on the balance of probabilities, that the marriage between him and the respondent has indeed broken down beyond reconciliation. As established in legal precedent, the burden of proof rests with the party making allegations. In cases such as ABABIO V AKWASI III (1994-1995) 2GBR, 774, it was held that the plaintiff must prove their case. If the plaintiff raises an essential issue in their pleadings, they assume the burden of proving it. The burden only shifts to the defense if the plaintiff provides some evidence to support their claim. The defendant must then present sufficient evidence to tip the scales in their favor on that specific issue. This standard of proof is about establishing the balance of probabilities in favor of the party making the claim, as stated in BISI V TABIRI (1987-1988) 1GLR 360. Although the respondent has requested ancillary relief, it's essential to clarify that ancillary relief is secondary to the main relief, which is the dissolution of the marriage. Therefore, I will address the dissolution of the marriage issue before considering ancillary relief. The key question is whether the marriage between the parties has irreparably broken down. If so, the petitioner is entitled to a decree of dissolution. It's crucial to note that a court hearing a divorce petition must carefully assess all the evidence presented, as a mere claim by one party that the marriage has broken down is not sufficient. The court must determine whether the evidence aligns with any of the grounds outlined in section 2 of the Matrimonial Causes Act (MCA). According to section 1(2) of the MCA, the sole basis for granting a divorce is that the marriage has broken down beyond reconciliation. To establish this, the petitioner and/or the respondent must prove one or more of the specified facts listed in section 2(1)(a) to (f) of the MCA in their respective evidence. This requirement was clarified in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) on page 202, where it was stated that the court should grant a divorce only when there is an incontrovertible breakdown of the marriage beyond reconciliation. The petitioner must prove the specified facts to a degree that convinces the court that these facts indeed exist, but even then, the court can exercise discretion in granting the decree if it's not satisfied that the marriage has genuinely broken down beyond reconciliation. The petitioner stated in their court petition that there were persistent misunderstandings between the parties that they couldn't resolve, resulting in a deterioration of their married life. He claimed that the respondent left the matrimonial home in December 2018 and never returned. The respondent corroborated this, explaining that the petitioner had expelled her from their home, and both parties acknowledged unsuccessful attempts at reconciliation. The petitioner also alleged that the respondent had married another man and had a child with him, which the respondent vehemently denied. However, the petitioner failed to provide concrete evidence to support his claims of adultery. These were mere assertions without substantial proof. The court found no evidence of adultery on the part of the respondent due to the absence of convincing proof. Both parties admitted to not living as husband and wife for a continuous four-year period and having no sexual relations during this time. The court found the petitioner's refusal to engage in sexual intercourse with his wife due to concerns about pregnancy unreasonable. This assertion was unchallenged by the petitioner, and according to legal precedent, unchallenged evidence is deemed admitted. Based on the evidence presented, it was clear that both families and their pastor had attempted to reconcile the couple, but all efforts failed, indicating irreconcilable differences. Therefore, the court, per section 2(1)(d) of the Matrimonial Causes Act (MCA), concluded that the marriage had irretrievably broken down. From the evidence provided, it's evident that both families and their pastor made efforts to reconcile the couple, but all attempts were unsuccessful. Both parties agree that they haven't lived as husband and wife for a continuous four-year period and have had no conjugal relationship during this time. The evidence presented indicates that their attempts to resolve their differences failed, leading to the deterioration of their marriage. The inability of their families and others to mediate effectively underscores the irreconcilable differences between the parties. In light of these circumstances, the court, per section 2(1)(d) of the Matrimonial Causes Act (MCA), concluded that the marriage had irreversibly broken down. As per the precedent set in the case of KOTEI V KOTEI (1972) 2GLR 172, once the facts align with any of the grounds specified in section 2(1) of the MCA, a decree of dissolution should be granted unless the court determines otherwise. In accordance with the law, a decree of dissolution should be granted once the facts fall within any of the grounds specified in section 2(1) of the MCA. The court is indeed satisfied that the marriage had indeed broken down beyond reconciliation and accordingly decreed the dissolution of the marriage contracted on November 10, 2018. Regarding ancillary relief, the respondent sought to recover a loan of GHC9,600.00 that she had contracted for the petitioner, who had promised to repay it but had failed to do so. The petitioner admitted having asked the respondent to obtain the loan for their wedding and promised to pay it back. However, he claimed that some of the wedding funds were used to offset the loan, which the respondent contested. The court found the petitioner's assertion about the use of wedding funds unconvincing. The court's acceptance of the petitioner's assertion is based on established legal principles. As per 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, when evidence presented against a party remains unchallenged during cross-examination, the court is obliged to accept that evidence. This principle is reiterated in the case of Ashanti Gold Co. Ltd v Westchester Resources Ltd (2013) 56 GMJ 84 at page 128, where Korbieh J. A ruled that unchallenged evidence in cross-examination is deemed admitted by the opposing side. Similar legal principles are found in the cases of Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at page 890 and Fori v Ayirebi (1966) GLR 627 S. C. Therefore, the court acknowledged the respondent’s assertion as valid. The exchange during questioning went as follows: Q: Are you aware that before our marriage, I took out loans for the wedding, and you promised to repay them? A: Yes. Q: Are you aware that these loans have not been paid back? A: Yes, the money hasn't been repaid, but she said she would use the money we had at our wedding to cover it. Q: Do you recall that we had GHC 2,300 at the wedding, and you took GHC 1,000 out of that amount, leaving GHC 1,300? A: Yes, My Lord. Q: Are you also aware that I took GHC 500 out of the remaining GHC 1,300 to give to my brother for the money he contributed? A: Yes. Q: Do you acknowledge that after the wedding, I used the remaining balance for household expenses when I spent a week with you at Dodowa? A: Not true. The money we used came from the church. Q: I put it to you that what you just stated is untrue. A: Yes, it's false. Based on this evidence, it's clear that the petitioner had not repaid the GHC 9,600.00 loan he had promised to settle. Although he alleged that the respondent had used the wedding funds to cover the loan, this was proven to be false. Therefore, the court determined that the respondent was entitled to the repayment of the GHC 9,600.00 loan contracted for the petitioner. Consequently, the court hereby order the petitioner to reimburse the respondent with the sum of GHC 9,600.00. I make no order as to cost. SGD CATHERINE OBIRI ADDO ESQ REPRESENTATION PARTIES APPEARED PRO SE. 8