Tsibu Vrs Kyeremeh [2023] GHADC 69 (31 May 2023)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “A”, SEKONDI ON 31ST MAY, 2023 __________________________________________________________________ SUIT NUMBER A4/12/2023 SARAH ABENA TSIBU - PLAINTIFF V ERIC BARNIE KYEREMEH - DEFENDANT ……………………………………………………………………………………………………… ………………………. TIME: 9.12 AM PLAINTIFF DEFENDANT - - PRESENT ABSENT __________________________________________________________________ JUDGMENT By an amended petition filed on 11/05/2023, the Petitioner claims against the Respondent the following: 1. That the court should dissolve the ordinance marriage between the parties forthwith 2. That custody of the two children be granted to the petitioner whereas reasonable access be given to the respondent 3. That Respondent be ordered to maintain the two children at GH₵1,000 per month, thus GH₵500 per child to be reviewed by 10% per annum and also be made to pay the educational and medical bills as and when it falls due as petitioner will also be taken care of clothing and snacks 4. That the Respondent be made to pay transportation of the children at GH₵250 per month to and from school as the petitioner also pays the other half of the total amount of GH₵500 to be reviewed periodically. When the matter came up for trial on the 8th of February, 2023, the Respondent failed to appear in court. The court proceeded to hear the matter pursuant to Order 25 r 1 (2) of CI 59. Order 25 rule 1(2) of the District Court Rules, 2019 (C. I. 59), provides that “where an action is called for trial and a party fails to attend the trial the 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” There was proof of service of the petition and hearing notice on the Respondent but he failed to appear in court. It is trite learning that a party who fails to appear in court after due service on him is taken to have deliberately failed to take advantage of the opportunity to be heard. In such a situation, the audi alteram partem rule cannot be said to have been breached. BRIEF FACTS OF THE CASE It is the case of the Petitioner that the parties got married on the 8th of August, 2015 at the Wesley Methodist Cathedral Church, Sekondi. Both parties are teachers and Ghanaians. After the marriage, the parties cohabitated in Sunyani and there are only two children of the said marriage. It is the case of the Petitioner that the marriage celebrated between the parties has broken down beyond reconciliation. Petitioner says that the problem between the parties started about two years into the marriage. That the Respondent is not transparent and that every conduct of the Respondent is shrouded in secrecy, making life unbearable for the Petitioner. The Respondent failed to provide for the renewal of their rent. However, when the Petitioner raised the said rent through a loan she contracted and forwarded the same to the Respondent, the Respondent kept part of the money without recourse to the Petitioner. Petitioner says the Respondent's family members are not on talking terms with her, which is affecting their marriage. According to the Petitioner, the Respondent has engaged himself by having extramarital affairs with most of the student girls in his school and this act is causing her so much shame and embarrassment. Petitioner says she is lost interest in the marriage. At the end of the trial, the issue that arose for determination was whether or not the marriage celebrated between the parties had broken down beyond reconciliation. Per section 1(2) of the Matrimonial Causes Act 1971 (Act 367) the sole ground for granting a petition for divorce shall be that the marriage had broken down beyond reconciliation. Section 2(1) of the Act specifies acts that prove the breakdown of marriage beyond reconciliation to include facts that:- (i) That the Respondent has committed adultery (ii) Respondent had behaved in a way that Petitioner could not reasonably be expected to live with Respondent (iii) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition (iv) That the parties to the marriage have not lived as husband and wife for a continuous period of at least two years, and that the Respondent does not withhold his consent for the dissolution (v) 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 (v) That the parties to the marriage have after diligent effort been unable to reconcile their differences Per section 2(3) of the Act, although the Court finds the existence of one or more of the facts specified under section 2(1), the Court shall not grant the petition for divorce unless it is satisfied on all evidence that the marriage had been broken down beyond reconciliation. Petitioner, per section 11 of the Evidence Decree 1975 (NRCD 323) had to persuade Court to believe that the marriage had broken down beyond reconciliation. She had to do so by proving at least one of the acts listed under section 2(1) of the Act above. The petitioner testified herself and did not call any witnesses. The Petitioner tendered the marriage certificate as Exhibit A. The Respondent failed to appear in the court therefore the evidence of the Petitioner stood unchallenged. Petitioner testified that the Respondent is so secretive in the marriage and does not discuss anything regarding the family with her. Respondent takes decisions without consulting her and the Respondent does not respect her as a wife. The petitioner avers she gave an amount of GH₵5,000.00 to the Respondent to be invested at DKM Financial Services before the parties got married. However, despite persistent demands, the Respondent has not said anything about it to the Petitioner. Petitioner says she raised an amount of GH₵10,000.00 as rent but later she got to know that the Respondent kept part of the money to himself and did not pay the full amount as rent. Petitioner says the Respondent also took money from the Petitioner’s parents to purchase a car for them but to date, the Respondent has neither bought the car nor refunded the money despite repeated demands and this is causing her a lot of embarrassment. That the Respondent is having extramarital affairs. Petitioner says that the family members of the Respondent have been disrespecting the petitioner and her family. As I indicated earlier, the evidence of the Petitioner stood unchallenged because the Respondent failed to appear in court to conduct the cross examination. The effect is that the evidence of the plaintiff is acknowledged and accepted. In Quagraine V Adams [1981] GLR 599, CA, it was held that 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. See also Browne v Dunn (1894) 6 R 67, HL. and IBRAHIM VRS ABUBAKARI (2001-2001)1 GLR 540. Again, in TAKORADI FLOUR MIILS VRS SAMIR (2005-2006) SCGLR 882 it was held that in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court. From the evidence of the Petitioner, the acts of the Respondent have caused her so much embarrassment that she cannot no longer bear them. For example, his failure to buy the car for his in-laws after taking the money. Further, the amount of monies the Respondent has taken from the Petitioner for the investment and has failed to account for same. Coupled with the fact that he took money for rent and yet he underpaid the said rent. And to make matters worse, the family members of the Respondent have been disrespecting her. These are acts that definitely can affect a marriage. I recognize that the Petitioner accuses the Respondent of committing adultery. I am however of the view that the same could not be proved. Notwithstanding that, I am of the humble view that those acts of the Respondents that are causing the Petitioner embarrassment and stress are unreasonable on the part of the Respondent. Family members have tried to resolve the same without any success. In the circumstances, I find that the marriage celebrated between the parties has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent. I hereby make the following orders: 1. I declare that the ordinance marriage contracted between the parties herein on the 8th of August, 2015 at the Wesley Methodist Cathedral Church, Sekondi be and is hereby dissolved. It is hereby ordered that a decree of divorce be granted; the marriage certificate No. WMC/SKDI/03/2015 pursuant to licence no. STMA/RM/0594/2015 is hereby cancelled. 2. I order that custody of the two children of the marriage is hereby granted to the petitioner with reasonable access to the respondent 3. The Respondent is hereby ordered to maintain the two children at GH₵1,000 per month, thus GH₵500 per child to be reviewed by 10% per annum. 4. The Respondent is further ordered to pay the educational and medical bills of the children of the marriage as and when they fall due. 5. The Petitioner is also ordered to be responsible for the clothing and snacks of the two children of the marriage. 6. The Respondent is ordered to pay the transportation of the children at GH₵250.00 per month to and from school as the petitioner also pays the other half of the total amount of GH₵500. This is to be reviewed periodically. 7. There is no order as to cost. (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE 7