Bekoe Vrs Boadi [2023] GHADC 544 (30 April 2023)

Judgment (Divorce) 2023 IN THE DISTRICT COURT/KASOA CENTRAL REGION SUIT No. C/KS/A4//297/2023 MAVIS APPIAH BEKOE } PETITIONER VRS: DANIEL YAW BOADI } RESPONDENT JUDGMENT -------------------------------------------------------------------------------------------------------- GIVEN BY H/W STEPHEN OFORI AKRASI ESQ (DISTRICT MAGISTRATE) DATED 31//4/2023. Judgment (Divorce) 2023 IN THE DISTRICT MAGISTRATE COURT HELD AT KASOA ON WEDNESDAY, THE 31ST DAY OF APRIL, 2023 BEFORE HIS WORSHIP STEPHEN OFORI AKRASI ESQ, THE DISTRICT MAGISTRATE. SUIT No. C/KS/A4//297/2023 MAVIS APPIAH BEKOE } PETITIONER VRS: DANIEL YAW BOADI } RESPONDENT } RESPONDENT ……………………………………………………………………………………………………… JUDGMENT ……………………………………………………………………………………………………… The Petitioner and the Respondent were married under Ordinance marriage 1884, (CAP 127) on 10/9/2011. The Marriage was evidenced by a Marriage Certificate Number PCGEC/KA/001/2011 with License Number EPC/AL/001/2016. There is two issues of the marriage. Per the petition filed on the 3/6/22, the petitioner sought divorce on grounds that the marriage has broken down beyond reconciliation. That the respondent has put up an unreasonable behavior to such an extent that the said misbehaviour of the Respondent has affected her psychologically that she can no longer cope with the situation and Judgment (Divorce) 2023 therefore seeks dissolution of the marriage. In the particulars of misconduct, the Petitioner avers that: i. That after the marriage the plaintiff has series of issues with the respondent just as any other couples resulting into violence at the slightest or less provocation. ii. That the Respondent has for all these years been solely responsible for the upkeep of their children. iii. That the respondent has over a year from the date of filing the petition abandoned petitioner and the children in their matrimonial home forcing the petitioner to vacate the said home to her mother’s home at Kasoa Top Hill after the expiration of their tenancy agreement. iv. That the marriage has broken down beyond reconciliation. That the Petitioner is therefore seeking for: I. The dissolution of the marriage celebrated between them on 13/9/2016. ii. Custody of the children. Respondent conceded that the marriage has broken down beyond reconciliation save the claim of violent behaviour in a least provocation. Respondent rather accused the petitioner of misbehaviour citing verbal abuse, disrespect and denial of sex for a considerable period of time. Respondent also filed copies of statement of mobile money transfer transaction covering monies he has sent to their children to disprove the claim of non-maintenance. Respondent cross- petitioned for dissolution of the marriage. Judgment (Divorce) 2023 EVALUATION OF EVIDENCE AND APPLICATION OF LAW The legal issues for determination per the facts are: 1. Whether or not the marriage has broken down beyond reconciliation. 2. Whether or not the conduct of Respondent or petitioner constitutes unreasonable behavior to ground dissolution of the marriage. 3. Whether or not the plaintiff or the Respondent is entitled to the reliefs being sought. The evidential rule in civil cases is that the burden of proof rests upon the party who substantially asserts the affirmative of his case. In the case of Lamptey alias Nkpa vrs. Fanyie and Others (1989-90) 1 GLR 286 the Supreme court held that on general principles, it was the duty of the Plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the Defendant to lead sufficient evidence to tilt the scale in his favour. This is clearly covered in section 10,11,12 and 14 of the Evidence Act, 1975, NRCD 323. In Majolagbe v Larbi (1959) GLR190 @ 192, Ollennu J (As he then was) had this to say on what constitutes proof in Law: “Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath, by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true’. Judgment (Divorce) 2023 Adinyira JSC expatiating on the cardinal principle of Audi alteram paterm in In re: Kumi (dc’d); Kumi v Nartey (2007-2008) SCGLR 623 @ 632-633 held inter alia as follows: “………………….. it is trite law that a person cannot be found guilty or liable on order or judgment unless he had been given fair notice of the trial or proceedings to enable him to prepare and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is in our view, a nullity”. However, in the instant case, the Defendant failed to attend court notwithstanding the service of hearing notices on her on two occasions. Thus, Defendants failed to take advantage of the law to make her side of the story to be heard. I shall proceed to deal with the second issue. This is because the ability to prove unreasonable behaviour suffices for the proof that the marriage is broken down beyond reconciliation. (See Section 2(1) (b) of the Matrimonial Causes Act 1971 (Act 367) . It states: “A Petitioner may rely on the fact that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent to prove that a marriage has broken down beyond reconciliation.” Unreasonable behaviour has been defined in English law as conduct that gives rise to injury to life, limb or health or conduct that gives rise to a reasonable apprehension of Judgment (Divorce) 2023 such damage. Thus, actual injury does not have to be established. In Gollins V Gollins [1964] A. C. 644, the House of Lords stated as follows; “If the conduct can be called cruel it does not matter whether it springs from a desire to hurt or selfishness or sheer indifference.” Thus, a petitioner who relies on unreasonable behaviour for divorce must establish two things: 1. The conduct constituting the unreasonable behaviour on the part of the respondent; and 2. The fact that he/she cannot reasonably be expected to live with the respondent as a result of the bad behaviour. The court of appeal in the case of Knudsen v Knudsen [1976] 1 GLR 204 had this to say on what constitute unreasonable behaviour: “The behaviour of a party which will lead to this conviction would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity or of a persistent course of conduct or a series of acts of different kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so.” By the admission by the parties that the marriage has broken down beyond reconciliation coupled with fact that the parties have separated for long time is Judgment (Divorce) 2023 sufficient to conclude the claimed by the parties that the marriage is broken down beyond reconciliation. It is a trite law that it is not always possible to get direct evidence in every case. In that circumstance it is legally permissible to draw reasonable inference. (See AWEDAM v THE REPUBLIC [1982- 1983] GLR 902). Inferably, the Respondent has left the matrimonial home for six years and that is sufficient to conclude that the marriage has broken down beyond reconciliation. Accordingly, the marriage celebrated between the Petitioner and the Respondent on 8th September, 2011 evidenced by Certificate Number BPC/AW/001/2011 with License Number PCGBC/KA/001/2011 is hereby dissolved forthwith on the ground that same has broken down beyond reconciliation. Further, custody of the children by Petitioner should still be maintained with reasonable access to the respondent. Cost is assessed at GHc 5,000.00. The ancillary reliefs has been settled by the parties and their respective counsels and same is adopted as “CONSENT JUDGMENT”. Petitionr : Present Responent : Present Counsel for Petitioner : Present Respondent : Present Judgment (Divorce) 2023 (SGD) STEPHEN OFORI AKRASI ESQ. (DISTRICT MAGISTRATE) 8