Hagan Vrs Hagan [2023] GHAHC 116 (24 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON 24TH MAY, 2023 BEFORE HIS LORDSHIP JUSTICE EMMANUEL A. LODOH E6/05/2023 ALEXANDER MENSAH HAGAN PETITIONER H/NO. KP 21 KWAPROW, NEAR UCC CAPE COAST VRS. MRS. ADWOA OFOSUA HAGAN RESPONDENT H/NO. KP 21 KWAPROW, NEAR UCC CAPE COAST JUDGMENT The Petitioner on 15th December, 2022 invoked the court’s jurisdiction in a petition for divorce under Section 1 of the Matrimonial Causes Act, 1971 (Act 367) and Order 65 rule 2 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) seeking the following reliefs: 1 of 18 1. That the marriage celebrated between himself and the Respondent be dissolved. 2. Any other relief as the Honourable Court may deem expedient so to grant the Petitioner. Cross-Petition The Respondent duly responded to the petition and in her Answer to the petition, cross-petitioned for multiple reliefs as follows: a. The Respondent be granted custody of the children of the marriage namely Elsa Ewuradwoa Esandowa Hagan aged 16 years and Jed Eliot Kweku Ogyiri Hagan, aged 14 years. b. That the matrimonial home, H/No. KP 21 Kwaprow, Cape Cpast be settled in favour of the Respondent. c. That the petitioner be made to maintain the children at an amount of GH¢50, 000.00 monthly. d. That the Petitioner be made to pay for the medical bills, school fees and provide other necessities of the children. e. That the landed properties be shared as follows: i. The plot of land at Agona Nyarkrom purchased from the Asona Royal Family be settled in favour of the Respondent. ii. That the 6 plots of land at Kwaprow be shared equally between the parties. iii. That the 52.55 acre of land situated at Komenda-Antado be shared equally between the parties. iv. That the 1.69 acres of land situated at Mempeasem be shared equally between the parties. 2 of 18 v. That the 1.10 acres of land situated at Jukwa be shared equally between the parties. vi. That the 6 plots of land at Gomoa Potsin be shared equally between the parties. f. That the Petitioner be made to pay an alimony of GH¢800,000.00 to the Respondent. g. That the Petitioner be made to bear all the cost arising out of this suit. h. And for any other or further orders as this Honourable Court may deem fit so to grant. Undisputed Facts The undisputed facts of this case are that the party’s celebrated their marriage under the Marriages Act, 1884-1985 (CAP 127) on 1st May, 1999 at the Grace Temple of ICGC, Cape Coast in the Central Region. The parties do not also dispute that the marriage begot three children namely Alexander Ohenana Kojo Hagan aged 21 years; Elsa Ewuradwoa Esndowa Hagan aged 16; and Jed Eliot Kweku Ogyiri Hagan aged 13 years. Burden of Proof An examination of the pleading will show that each of the parties made allegations and counter allegations against each other. Accordingly the issue which arises is which of the parties assumes the burden in respect of their individual allegations. I will rely on the two cases in determining who assumes the burden of proof. The first is these cases is Ababio v Akwasi III [1994-95] GBR 774@777. In this case it was held that: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue 3 of 18 essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue” In second case is Bank of West Africa Ltd. V. Ackun [1963] 1GLR 176 it was reported in holding 2 that: “The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”. Evaluation The sole ground upon which the petitioner has embarked on this enterprise to seek the dissolution of his marriage to the respondent is that the union has broken down beyond reconciliation as a consequence of the unreasonable behaviour of the Respondent, which he chronicled under paragraph 9 of his petition. The Respondent on her part in her answer filed on 5th January, 2023 not only denied these allegations but also advertised her issues with the Petitioner as well. The record will however show that the Respondent did not cross-petition for the dissolution of the marriage, neither did she resist the dissolution of the marriage. In her answer she listed a litany of issues against the conduct of the Petitioner which to my mind to all intent and purposes suggest that she equally finds the conduct of the petitioner intolerable. During pre-trial proceedings, however, the Respondent intimated to the court that she did not what the marriage dissolved. Two matters springs from this information. 4 of 18 The first is that even though the court on 19th January, 2023 granted the parties a long adjournment to enable them attempt reconciliation, same was unsuccessful. The next issue is whether or not on the evidence led before this court during the trial, the Respondent had demonstrated that she was truly against the dissolution of the marriage. I will deal with net consequence of these questions subsequently. Dissolution of Marriage Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367), provides that the sole ground for allowing a petition for divorce shall be upon proof that the marriage has broken down beyond reconciliation. This position of the law was re-echoed in the case of DANQUAH v. DANQUAH [1979] GLR 371 as follows: “The Matrimonial Causes Act, 1971 (Act 367), imposed on the court a species of restriction which was unique. For having established by section 1 (2) that the sole ground for granting a petition should be that the marriage had broken down beyond reconciliation and having by section 2 (1) laid down those facts the proof of which should, prima facie, show that the marriage has so broken down, section 2 (3) authorised the court to grant a petition for divorce only when the court was satisfied, on all the evidence, that there has been an irreconcilable breakdown of the marriage” The Court’s duty therefore as set out under Section 2 (2) and (3) of Act 367 is inquire into two matters provided for as follows: (2) On a petition for divorce the Court shall inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. (3) 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 5 of 18 satisfied, on all the evidence, that the marriage has broken down beyond reconciliation INQUIRY INTO ALLEGATIONS This trial was conducted by the use of Witness Statements. The Petitioner in his witness statement filed on 10th May, 2023 testified about various instances of unreasonable behaviour by the Petitioner, notwithstanding the love he has for the Respondent. In evaluating the allegations to be proven, I will rely on the case of Danquah v Danquah [1979] 371 for directions. In this case it was held that: “The requirements in section 2 (1) of Act 367 that the petitioner must satisfy the court of one or more of those five facts therein specified to prove that the marriage had broken down beyond reconciliation would mean those facts the petitioner had both pleaded and proved. It would accordingly exclude facts pleaded but not proved or facts proved but not pleaded” Section 2(1) of Act 367 provides as follows: 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; 6 of 18 (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. As stated earlier, the Petitioner levelled a plethora of allegations of unreasonable behaviour against the Respondent. According to the Petitioner the class of allegations that triggered the petition were the breakdown in consensus in decision making, breakdown in communication, adultery, and religious disagreements. I find from the evidence on record though that he failed to proof the case of adultery against the Respondent. My view of the law is that allegations of adultery, when denied, are not proven by simply repeating the same allegations in evidence. This is particularly against the backdrop that the Petitioner claimed he had evidence in 7 of 18 proof of the adultery against the Respondent. The petitioner testified during cross- examination as follows: Q. A. Q. A. In paragraph 18 & 19 you said that your wife has committed adultery? Yes You do not have any evidence to establish same. Do you. I have. So the question is whether there is positive evidence on the record in proof of the Petitioner’s allegations of adultery against the Respondent. Clearly, from the evidence of record no evidence of circumstances from which a case of adultery can be inferred was produced. The Petitioner only repeated his allegations and accusations, which I consider as mere words. The law as I understand it is that the standard of proof required in respect of adultery is almost close to proof beyond reasonable doubt. In the case of ADJETEY AND ANOTHER v. ADJETEY [1973] 1 GLR 216 HC, it was reported in holding 1 as follows: “Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of probability. Direct evidence of adultery was rare. In nearly every case the fact of adultery was inferred from circumstances which by fair and necessary inference would lead to that conclusion. There must be proof of disposition and opportunity for committing adultery, but the conjunction of strong inclination with evidence of opportunity would not lead to an irrebuttable presumption that adultery had been committed, and likewise the court was not bound to infer adultery from evidence of opportunity alone”. 8 of 18 From the foregoing having failed to put before the court sufficient evidence to establish his allegation of adultery against the Respondent, same is hereby dismissed as unproven. Regarding the other incidents of unreasonable behaviour it is my considered view that, where it is proven, same will be sufficient to ground an inference of a toxic and unhealthy environment for which the marriage cannot in the interest of the wellbeing of the parties be allowed to continue to subsist. I find from the record that none of the conducts complained about against the Respondent was challenged during cross-examination, accordingly, I will deem same to be admitted. In the unreported case of National Investment Bank Ltd. v Messrs Agyakot Co. Ltd & Ors (H1/136/2006) delivered 1st November, 2007 the Court of Appeal relied on the same principle and stated as follows: “Where a witness had given a material evidence and that evidence was not challenged on cross-examination, the court might invariably take the failure to challenge as an admission by the opponent of the truth of the matter stated.” Finally the Supreme Court in a not too recent matter of Danielli Construction Ltd v Mabey & Johnson Ltd (2007-2008) SCGLR 60 concluded that the plaintiff’s failure to cross-examine the Defendant’s witness amounted to an admission. It was reported at page 65 of the said report as follows: “The Plaintiff company did not cross-examine the witness of the defendant company in the witness box when he gave that evidence. The plaintiff company did not also tender any evidence to challenge the veracity of the evidence in Exhibit 2 and the inference was that it admitted the import of the evidence.” 9 of 18 The Respondent on the other hand in her witness statement filed on 10th May, 2023 similarly accused the Petitioner of adultery. Unlike the Respondent who denied the allegations of adultery against her pleadings, and in her witness statement (see paragraph 23) and also challenged the Petitioner of same during cross-examination, same cannot be said of the Petitioner. The petitioner in his pleading failed to respond to the claims of adultery against him. He was also silent about the allegations of adultery made against him in his witness statement. He also failed to challenge the Respondent on the issue of adultery during cross-examination. The law as I understand it is that where allegations contained in the pleading or evidence is not denied or challenged during cross-examination, same will be deemed to have been admitted and therefore no further evidence would be required in proof thereof. Accordingly, I find that having failed to deny that he was in an adulterous relationship with a certain named lady, I find that the Respondent has satisfied this court that the Petitioner had committed adultery. The respondent also made several allegation of unreasonable behaviour against the Petitioner. Her evidence was also not challenged during cross-examination. Indeed she was led by counsel for the Petitioner during cross-examination to admit her strained relationship with the Petitioner as follows: Q. You are saying that your husband for the past three years have changed so far as his character and relationship towards you have changed. Is that so? That is so. Since five years ago. So currently you have been living in pain, hurt and anxiety, because of A. Q. his conduct. A. Yes 10 of 18 Q. You also say your husband character is causing you emotional trauma A. Q. A. Q. A. Q. A. Q. A. Q. and affecting you physically. Yes. He does not spend much time with you when he comes from work. Yes. The conduct is not making you happy in this marriage. Is that not the case? To some extent. You are saying that your husband had not shown much care and abandoned you in Accra. Yes You will agree with me that this character change of your husband is not making you happy in the marriage. Yes. I am putting it to you that per your precious answers you have just given both your husband and yourself are not just happy in this marriage. A. This has been so for a long time. We are trying to reconcile the marriage. Q. I am again putting it to you that your husband and yourself are unable to sit to resolve issues, which you admit has been pending for about five years hence his filing of the petition. A. Yes. Clearly from these responses, it is manifest that the Respondent sees herself in a relationship which is unhealthy. I therefore do not see the distinct nexus between her claim during pre-trial that she was not interested in the dissolution of the marriage and her evidence in court. 11 of 18 Having examined the totality of the evidence, I find that the parties have put before this court evidence of unreasonable behaviour against each other, with the net effect that they each find it intolerable to live together as husband and wife. BREAKDOWN IN RECONCILIATION The next question though is whether or not the marriage can be saved. That is whether there is evidence on the record to ground an inference that the marriage has broken down beyond reconciliation. My view on the factors to consider when determining this question is to have regard to the attitudes of the parties as expressed in the evidence before the court. It is my considered view that the court cannot gloss over the attitudes and evidence before to determine this question on other factors beyond that which is apparent before it. Thus I am of the considered view that where it is deducible from the evidence that the parties have displayed negativity in attempts at reconciliation, the courts is obligated to situate its decision within that context. The predicate question to deal with before considering the question is whether or not the issues between the parties are resolvable. My view is that given the length of time the issues between the parties have lingered, I am of the considered view that their issues either not resolvable or that they are unwilling to resolve same. As indicated earlier, the court upon being siesed with the matter granted the parties reasonable time to enable them resolve their issues and attempt reconciliation, but this failed. In paragraph 25 and 26 of her witness statement the Respondent stated as follows: 12 of 18 25. That the Petitioner has caused me so much emotional pain and lack of sexual satisfaction due to his perverse sexual escapades. 26. I say that although I strongly believe that the marriage has not broken down beyond reconciliation, Petitioner insists on leaving the marriage of which I cannot compel him. We have therefore agreed on terms to settle the reliefs I sought, and same executed for the Honourable Court’s consideration. I will also refer to a response given by the Respondent when she was cross-examined by counsel for the petitioner. In her response the Respondent testified that her issues with the Petitioner had remained unresolved for the past five years: Q. I am again putting it to you that your husband and yourself are unable to sit to resolve issues, which you admit has been pending for about five years hence his filing of the petition. A. Yes. The Petitioner unchallenged evidence in paragraph 25 of his Witness statement is as follows: 25. That again friends, numerous family members and pastors known to both parties have intervened to ensure reconciliation but the Respondent has taken some entrenched position which is preventing the marriage from surviving. I am satisfied from the evidence adumbrated on the question of whether or not the marriage has broken down beyond reconciliation that the parties by their own 13 of 18 showing have demonstrated that their marriage has broken down beyond reconciliation because their issues have been lingering for close to five years and further that persons called to intervene have also failed to resolve the issues and reconcile the parties. In conclusion therefore I find that the marriage between the parties have broken down beyond reconciliation. ANCILLARY RELIEFS The Respondent in her answer prayed for some additional reliefs. During the trial however, the parties settled the issues in respect of the ancillary reliefs with the aid of their lawyers and filed terms of settlement to reflect same. It is trite knowledge that the court will always uphold settled arrangements entered between parties prior to judgment. Therefore I am of the considered view that having filed terms of settlement, it is not necessary for the court to determine the merits of the prayer for additional reliefs by the Respondent, since by the very effect of the settlement, a dispute cannot be said to be pending. The parties duly filed the terms of settlement on 27th April, 2023 and during the hearing, they each testified about its creation. Accordingly, having settled the ancillary reliefs and filed terms of settlement on 27th April, 2023 as a product of same, I will adopt the said terms of settlement executed by the parties and their lawyers and will enter same as the consent judgment of this court in respect of the ancillary reliefs only. Conclusion In conclusion, I am satisfied that the parties have put before this court evidence in proof that their marriage contracted at the Grace Temple of ICGC, Cape Coast, 14 of 18 Central Region on 1st May, 1999 has broken down beyond reconciliation. I accordingly declare that: 1. The ordinance marriage celebrated between the Alexander Mensah Hagan and Mrs. Adwoa Ofosua Hagan on 1st May, 1999 at the Grace Temple of ICGC, Cape Coast, Central Region hereby dissolved. 2. The terms of settlement executed by the parties and filed at the registry of this court on 27th April, 2023 is hereby adopted by the court and entered as the consent judgment of the court with the following extracted terms from the terms of settlement: (a) That Respondent be granted custody of the children of the marriage with reasonable access to the Petitioner, ie on holidays, vacations and days which may be agreed upon by the Petitioner and the children with notice to the Respondent. (b) That the matrimonial home, H/NO. KP21 Kwaprow, Cape Coast be declared as joint property of the Petitioner and Respondent. Albeit, the Respondent together with the children of the parties shall be in occupation of the house in order to maintain the status quo but neither the Petitioner nor the Respondent can bring his/her paramour into the house. (c) That the parties have jointly agreed that there would be no divisions, changes, partitioning in whatever form or manner to the said matrimonial home only because it has been declared as a joint property. 15 of 18 (d) That the matrimonial home which is presently not in good condition (specifically, the walls of the bedroom, living room walls, lights, painting of the house etc.) be renovated by the Petitioner on or before 31st July, 2023. (e) That the matrimonial property be subsequently maintained at the expense of both parties. (f) That the following under listed properties be shared equally (half each) between the parties as joint owners: (1) 6 plots of land at Kwaprow. (2) 52.55 acre of land situated at Komenda-Antado (3) 1.69 acres of land situated at Mempeasem (4) 1.10 acres of land situated at Jukwa (5) 6 plot of land at Gomoa Potsin (6) 20 acres of land at Akatekyiwa Beach (7) 7 plots of land at Agona Nyakrom 16 of 18 (3) That the Petitioner agrees to pay the Respondent an amount of GH₵20.000.00 monthly as maintenance of the children subject to increment upon prices hikes. (4) That the Petitioner shall be responsible for the school fees, medical bills and the necessities of life of the children of the marriage. (5) That the Petitioner agrees to pay an alimony of GH₵ 300,000.00 to the Respondent. That the payment shall at least be in installments for one (1) year commencing 1st May, 2023 to 30th April, 2024. (6) That the mode of all payments shall be through bank transfers into Respondent’s bank account. (7) That the terms of this settlement be embodied in a consent order of this Honourable Court. (8) There shall be no order as to cost. (SGD) Emmanuel A. Lodoh (HIGH COURT JUDGE) Counsels 17 of 18 1. Roland A. K. Hamilton, Esq. Counsel for the Petitioner 2. Eunice Frimpong, Esq. Counsel for the Respondent 18 of 18