Amissah Vrs Amissah [2023] GHADC 661 (23 May 2023)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 23RD DAY OF MAY, 2023 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/02/23 VICTORIA APPIAH AMISSAH PETITIONER VRS RICHARD KOFI AMISSAH RESPONDENT PETITIONER IS PRESENT AND REPRESENTED BY JOHN LISTOWELL SEKLE ESQ. RESPONDENT IS ABSENT BUT REPRESENTED BY SETH AMOAKO HIS LAWFUL ATTORNEY JUDGMENT The petitioner filed a petition for divorce in the Registry of this court on 4th October, 2022 against the respondent for the following reliefs: a. Dissolution of the marriage between the parties. b. The sum of Forty Thousand Ghana cedis as compensation for services rendered by the petitioner to the respondent by assisting him to buy the taxi cab, acquiring one plot of land and assisting him to complete the matrimonial home where parties were living before the separation. c. Costs including legal fees. On 21st March 2023, parties were referred to the Court Connected ADR for a possible settlement of the ancillary reliefs and on 19th April 2023 parties reached an agreement on the ancillary reliefs. At the close of pleadings, the court set down the issue of whether or not the parties’ marriage has broken down beyond reconciliation for determination. CASE OF THE PETITIONER It is the case of the Petitioner that parties got married in the year 2015 at Kasoa Victory Bible Church. She tendered the marriage certificate with licence number A. M. A 10155878/2015 in evidence and same was admitted and marked as Exhibit A. After the marriage parties cohabited at Gallilea close to the West End University and there is no issue of the marriage. It is the further case of the petitioner that respondent was ordinarily resident in Portugal and so she was living in the matrimonial home with respondent’s mother, his son, brother, a nephew and two nieces. She added that respondent used to visit her in Ghana once a year and spent between one to one and half months with her. According to her, she resigned from her work after getting married to respondent and started selling used goods that respondent sent to her from Portugal with the support of respondent’s siblings. She added that when the business expanded, she took a loan from her father and rented a shop and rendered accounts of the sale of the goods to the respondent weekly. She stated that respondent failed to maintain her and failed to show her any respect. Whenever she complained, respondent requested her to rent an apartment of her own so he would know that she works for him. She stated further that respondent’s family did not respect her and had issues with her and as a result, she requested the respondent to complete her uncompleted building to enable her move in which request he turned down. She prays for a dissolution of the parties’ marriage. RESPONDENT’S CASE IN ANSWER The lawful attorney informed the court that the respondent had granted him a Power of Attorney to represent him in this matter. He tendered a Power of Attorney filed in this court on 11th January 2023 and same was admitted in evidence and marked as Exhibit 1. The lawful Attorney of the respondent admitted that parties married and lived as a couple for six years. It is his case that throughout the pendency of the marriage, respondent lived in Portugal. He visited Ghana during Christmas holidays and sometimes stayed for a month or a month and some few days. It is his further case that respondent decided to bring some goods from Portugal to Ghana for the petitioner to sell same on his behalf. According to him, somewhere in June 2021, the respondent shipped a 40 footer container of goods including fridges, television sets, electronic irons and other items to be cleared from the Tema Port by the petitioner for sale. He stated further that the respondent brought her the necessary documentation and money to clear the goods from the port which she did. Petitioner subsequently brought the goods to her shop at Kasoa and started selling same from July to 17th December 2021. On 18th December 2021, respondent arrived in Ghana. On 19th December 2021, petitioner sought permission from respondent to visit her parents. She was to return the same day however she failed to return that day. Respondent followed up to petitioner’s house and met her absence. Petitioner resurfaced in the matrimonial home after a week with her family members and informed respondent that she was no longer interested in the marriage and that she had come to return the customary drinks, her rings and bible to him for the dissolution of the customary law marriage. Respondent was surprised by the visit and assured the petitioner and his family that he will visit them in the company of his family to resolve any outstanding issues. Respondent and his family subsequently visited petitioner’s family and tried without success to reconcile the parties as petitioner was adamant that she was no longer interested in the marriage. Petitioner informed respondent’s family that respondent was indebted to her to the tune of GHC11, 000.00 Respondent accordingly paid the said sum to her and requested petitioner to render accounts of the goods delivered to her by the respondent via the 40 footer container which goods she had cleared from the ports. The lawful attorney of the respondent stated that petitioner never rendered accounts of her stewardship of respondent’s business to him and the amount sitting in the business accounts was not up to GHC50, 000.00 In January 2022, respondent went back to Portugal and advised his family not to pursue the petitioner for anything. After the departure of the respondent, petitioner went with a tipper truck to the shop to cart away as many goods as she could carry as she still had access to the keys to the shop. When she was queried by the respondent, she admitted that she had taken the goods for her personal use. Since 19th December 2021, parties have been living their separate lives until the petitioner served the respondent with the present petition. He prayed for a dissolution of the parties’ marriage. BURDEN OF PROOF It is trite that in civil cases, proof is by a preponderance of probabilities. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736, Sophia Adinyira JSC (as she then was) delivered herself as follows; “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.” This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved.” SHIFTING OF THE BURDEN OF PROOF The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; Except as otherwise provided, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. THE COURT’S ANALYSIS AND OPINION Issue : whether or not the marriage between the parties has broken down beyond reconciliation. Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2 (1) of Act 367 explains that 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 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 (f) That the parties after a diligent effort been unable to reconcile their differences. Section 2(2) of Act 367 imposes a duty on the court to enquire into the facts alleged by the petitioner and the respondent. Section 2(3) also provides that although 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. His Lordship Dennis Adjei J. A stated this position of the law in CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (2015) 99 GMJ 202, thus; “The combined effect of sections 1 and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in Section 2 of the Act has been proved.” From the evidence, the Petitioner based her allegations for the breakdown of the marriage on the unreasonable behaviour of the Respondent. To succeed under the fact of unreasonable behaviour, the petitioner must first establish unreasonable conduct on the part of the Respondent and secondly, she must establish that as a result of the bad conduct, she cannot reasonably be expected to live with him. 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 She 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. From the evidence, apart from the bare assertions of the petitioner, no shred of evidence was led by the petitioner to prove unreasonable conduct on the part of the respondent. I find however from the totality of the evidence before me that parties have not lived together as man and wife since December 2021 after the dissolution of the customary law marriage of the parties and all attempts at reconciliation have failed. I therefore proceed under Section 47 (1) (f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between Victoria Appiah Amissah and Richard Kofi Amissah celebrated at the Victory Bible Church International in Accra on 12th September, 2015 is dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. The terms of agreement of the parties dated 19th April 2023 is adopted as consent judgment and made a part of the final judgment of this court. Parties are to bear their own legal costs. ............................................... H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)