Akuffo Vrs Kesse [2023] GHADC 629 (16 May 2023)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 16TH DAY OF MAY, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/62/23 ERIC DENSU AKUFFO PETITIONER VRS LINDA KESSE RESPONDENT PETITIONER IS PRESENT AND REPRESENTED BY FRANCIS MENSAH WENDLE ESQ. RESPONDENT IS PRESENT AND SELF REPRESENTED. JUDGMENT The petitioner filed a petition for divorce at the Registry of this court on 21st February, 2023 against the respondent for the dissolution of the parties’ marriage as same has broken down beyond reconciliation. The respondent filed an answer to the petition on 22nd March 2023 and cross petitioned for the following reliefs; 1. That the marriage between the parties be dissolved. 2. That the petitioner be ordered to pay GHC5,000.00 as compensation 3. Any further orders as this court may deem fit. At the close of pleadings, the court set down the following issues for determination; a. Whether or not the parties’ marriage has broken down beyond reconciliation for determination. b. Whether or not the respondent is entitled to financial settlement THE CASE OF THE PETITIONER It is the case of the Petitioner that parties got married in accordance with customary law on 20th December 2018 and later converted same under Part III of the Marriages Act 1884- 1985 (CAP 127) on 22nd December 2018 at the Presbyterian Church of Ghana, Resurrection Assembly at Accra in the Greater Accra Region of the Republic of Ghana. She tendered the marriage certificate with licence number AMA 101808513/2018 in evidence and same was admitted and marked as Exhibit A. After the marriage parties cohabited in a rented accommodation at Lapaz until they got separated in October 2021. There is no issue of the marriage. It is the further case of the petitioner that the parties marriage’ has broken down beyond reconciliation due to the unreasonable behaviour of the respondent and she cannot reasonably be expected to live with him as his wife. According to him, the respondent has been very disrespectful to him to the extent that she shouts and humiliates him at the least or without any provocation whatsoever. Again the respondent was mostly hostile and cold towards him and would not cook even though petitioner gives her money for maintaining the matrimonial home. He added that there has been a series of family interferences from the family of the respondent to the extent that respondent’s mother encouraged her to desert the matrimonial home. Petitioner added that in October 2021, parties had a misunderstanding where the respondent left the matrimonial home and has since failed to return. As a result, parties have not lived as husband and wife since October 2021 and all attempts at reconciliation by their respective families have proved futile. Petitioner prayed the court to dissolve the parties’ marriage as same has broken down beyond reconciliation. He stated that he has agreed to pay the sum of GHC5,000.00 to the respondent in three instalments as financial settlement. He again admitted that parties bought a land during the subsistence of the marriage which he resold at a cost of GHC6, 000.00 He prays the court to allow him pay the sum of GHC3, 000.00 to the respondent as her share of the matrimonial property he sold. RESPONDENT’S CASE IN ANSWER Respondent admits that the parties’ marriage has broken down beyond reconciliation. It is her case that petitioner has been downright unreasonable throughout the subsistence of the marriage by being both verbally and physically abusive to the extent of drawing out a knife and threatening to stab her to death several times. As a result she cannot reasonably be expected to live with him. It is her further case that petitioner shunned, demeaned and humiliated her whether they were in public or alone. She added that petitioner tortured her mentally and psychologically and prevented her from socialising with her family members and friends. According to respondent, petitioner refused to provide for her financially and restrained, frustrated and stifled every initiative of hers to develop herself, earn a living and gain financial independence or freedom. She stated that petitioner gets home deep into the night or stayed away for days without any communication or notice to her thus wasting food she had cooked for him from her meagre resources. Respondent says she fled the matrimonial home on October 19, 2021 after she was rescued by neighbours from the petitioner who was wielding a knife and threatening to stab her to death after physically assaulting her. When she returned to the matrimonial home the next day, petitioner had changed all the door locks to their home thus denying her access to same. She prayed for the dissolution of the parties’ marriage as same had broken down beyond reconciliation. 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 1: 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 his 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. The petitioner failed to lead any evidence to proof her assertions of unreasonable behaviour on the part of the respondent. The respondent also failed to lead any evidence to prove unreasonable behaviour on the part of the petitioner. It is however uncontroverted from the totality of the evidence that parties have not lived as husband and wife since October 2021. I therefore find and hold that the parties’ marriage has broken down beyond reconciliation by the fact that parties have not lived as husband and wife since October 2021. I therefore proceed under Section 47 (1) (f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between Eric Densu Akuffo and Linda Kesse celebrated at the Presbyterian Church of Ghana, Resurrection Congregation in Accra is dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. In line with the out of court settlement reached between the parties, Petitioner is ordered to pay the sum of GHC5, 000.00 in three instalments starting from 31st May 2023 to 31st July 2023 to the respondent as financial settlement to her. Petitioner is again ordered to pay the sum of GHC3, 000.00 in three instalments starting from 31st May 2023 to 31st July 2023 to the respondent being her share of the matrimonial property sold by the petitioner to a third party as agreed between the parties. Parties are to bear their own legal costs. ............................................... H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)