Aguda Vrs Ansah [2023] GHADC 189 (28 April 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NSAWAM N. A. M. A ON FRIDAY, 28TH APRIL 2023 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE SUIT NO. A4/14/22 CHRISTIANA AGUDA OF NSAWAM ------- PETITIONER VRS KENNEDY W. ANSAH ------ RESPONDENT OF AMAHIA PARTIES: PETITIONER PRESENT. RESPONDENT ABSENT. NO LEGAL REPRESENTATION JUDGMENT The Petitioner commenced the present action in this Court praying for the following reliefs: a. An order for the dissolution of the ordinance marriage between Petitioner and Respondent on the 6th of August, 2016. b. An order directed at Respondent to be responsible for the educational, medical, clothing of the said children and to pay GH¢500.00 every month towards the upkeep and maintenance of the children The Respondent appeared in Court only once and he also failed to file an Answer to the Petition although he was directed to do so by the Court. Respondent was present in Court when the Court ordered the parties to file their Witness Statements and yet Respondent did not file his witness statement neither did Respondent attend Court again thereafter. When the case was Page 1 of 10 called for hearing, Respondent chose to absent himself and so the matter was heard without him. Order 25 r 1(2) (a) provides; “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim” PETITIONER’S CASE Petitioner avers that she got married to the Respondent under the Ordinance Marriage on 6th August, 2016 and the marriage is blessed with three (3) children namely Erica Safoah Wiafe, 16 years, Jessica Kwaasibea Wiafe, 8 years and Esther Eshomaa Wiafe, 4 years. The Petitioner continued that for the past four (4) years, the Respondent has failed to maintain Petitioner and the children and Respondent has also been subjecting Petitioner to beatings and threats of death whenever she demands for maintenance. Petitioner added that all efforts by the family to resolve their differences have proved futile. The Petitioner therefore prayed the Court for the dissolution of the marriage between the parties. The Petitioner closed her case without calling any witness. In the circumstance the issue that falls for determination is; Whether or not the marriage has broken down beyond reconciliation. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2GLR pg 314 Adade JSC stated that: ‘A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail’. Page 2 of 10 Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provides that the burden of proof on a party in a civil suit should be on a balance of probabilities. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. The Petitioner has led evidence to establish the following facts: i. That the Respondent had subjected the Petitioner to beatings anytime Petitioner confronted Respondent on his refusal to maintain the respondent and the issues of the marriage. ii. That five years ago, the Respondent packed his things and left the matrimonial home without informing the Petitioner iii. That there has been no consortium between the parties for the past 4 years as the Respondent has denied the Petitioner her conjugal rights for the said period. iv. That several attempts by family, friends and church elders to resolve the issue have proved futile. It must be noted that, the Petitioner was not cross-examined on the evidence that she led. Also, the Respondent failed to lead contrary evidence since he chose to absent himself from the hearing for no just cause known to the Court. Page 3 of 10 In FORI V AYIREBI [1966] GLR 627 it was held by the Supreme Court at page 647 that: “The law is that where a party makes an averment and that averment is not denied, no issue is joined on that averment and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross examined upon it, he needs not call further evidence to that fact.” This principle of law was re-echoed in QUAGRAINE V ADAMS [1981] GLR 599, CA, where it was held thus; “where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged sub silentio, that averment by the failure to cross examine”. As has been shown already in the present case the Respondent did not lead contrary evidence and Petitioner was not cross-examined either. In the case of Takoradi Flour Mills vrs. Samir Faris [2005-06] SCGLR 882, the Supreme Court held that “where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court.” In the circumstance, the Court ought to accept the whole of the evidence adduced by the Petitioner at the trial. Page 4 of 10 In view of same the Court makes the following findings. Respondent having beaten up Petitioner and denying Petitioner her conjugal rights amounts to unreasonable behaviour. It is trite learning that, where a spouse engages in activities such as domestic violence, abuse of the other spouse, adultery, or desertion a finding of unreasonable behaviour may be made against such spouse. In the case of LOMAH v. AYELAZUNO (1995) 1 GLR 123, the Supreme Court held that, “the following ingredients need to be established: presence of behaviours and actions that amount to serious misconduct and disregard for the spouse; compulsive nature of the behaviour and actions; duration of the behaviour and actions; and any irreparable damage to the marriage because of the behaviour and actions.” At page 123 of the book, “At a glance! The Marriages Act and the Matrimonial Causes Act Dissected by Mrs Frederica Ahwireng-Obeng, the learned writer on unreasonable behaviour stated; “Unreasonable behaviour has been defined in English law as conduct that gives rise to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger”. The above statement reiterated the position of the law in GOLLINS V GOLLINS [1964] A. C 644: “The learned writer added that the principle of law is that, the bad conduct complained of must be grave and weighty and must make living together impossible. It must also be serious and higher than the normal wear and tear of married life.” Page 5 of 10 Under Act 367, cruelty has been subsumed under unreasonable behaviour. Rayden in his book ‘DIVORCE’, 10th edition @ page 145 defines cruelty as follows: “Legal cruelty may be defined as ‘conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.” The author also classified threats of actual personal violence, offensive language or false accusations of adultery, or incestuous adultery, or unnatural practices as cruelty. (Emphasis mine) It is also clear from the evidenced adduced at the trial that, the Respondent deserted the Petitioner. Desertion in a matrimonial matter is defined as the voluntary abandonment of one spouse by the other without just and sufficient cause. Desertion can take various forms, such as physical desertion, constructive desertion, or mental desertion. In Lomah v Ayelazuno (1995) 1 GLR 123 the Court held that: “Desertion can be established if it can be demonstrated that one spouse has voluntarily abandoned the other without just and sufficient cause.” Also, in the case of Addo v Akorli (2004) 2 GLR 802 the Court found that, the defendant had abandoned the plaintiff without lawful excuse and that she had caused the breakdown of their marriage. Page 6 of 10 Since there is no lawful excuse, known to Court, for which the Respondent packed out of the matrimonial; the Court concludes that, Respondent deserted the Petitioner in their matrimonial home. It is further found that the parties have irreconcilable differences. Petitioner states at paragraph 8 of her Witness Statement as follows: “8. Several attempts have been made by family and friends to have the issue resolved but all efforts have proved futile and even to the extent of inviting the elders of the Church of Pentecost, Nsawam Central yielded nothing as Respondent failed to adhered to their advice.” It is obvious that reasonable attempts to reconcile the parties have failed. In the case of Opoku v Akorli (2005) 5 GLR F 1, the Supreme Court of Ghana held that; “irreconcilable differences must be established through evidence which shows that any reasonable attempts at reconciliation have failed and that there is a breakdown of the marriage. The Court found that the breakdown of the marriage in this case was due to the petitioner’s unreasonable behaviour and her failure to uphold her marital obligations.” The law on dissolution of marriages is laid out in the Matrimonial Causes Act, 1971 (Act 367). Sections 1(2) and 2(1)(3) of Act 367 provides as follows: Page 7 of 10 "1(2) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(1) 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 following facts:- ... (a) that the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; (e) 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; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Page 8 of 10 (3) notwithstanding that 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." Considering the provisions of the law reproduces supra vis a vis the findings of fact made by the Court supra; the Courts finds per the whole of the evidence adduced at the trial that, the marriage has broken down beyond reconciliation. In Mensah v. Mensah [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is therefore incumbent upon a Court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough…”. It is the case that, the Respondent was not present at the hearing but this notwithstanding, the Court may proceed to deliver its judgement in the matter because the Respondent had been duly served with hearing notices at every stage of the proceedings. In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A Court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” Page 9 of 10 I have carefully considered the whole of the evidence adduced at the trial and Petitioner has succeeded in satisfying the Court that the marriage has indeed broken down beyond reconciliation. In view of same, I hereby enter judgment in favour of the Petitioner against the Respondent as follows: i. The marriage celebrated between the parties on 6th August, 2016 is hereby dissolved. ii. The Respondent shall maintain the children of the marriage by paying GH¢500.00 per month into Court. iii. The Respondent shall pay the school fees, other educational expenses and medical bills of the issues of the marriage. iv. The Respondent to pay the sum of GH¢20,000.00 as financial settlement to the Petitioner. v. No order as to costs. (SGD) H/W SARAH NYARKOA NKANSAH MAGISTRATE 28/04/2023 Page 10 of 10