Aduamah Vrs Aduamah [2023] GHADC 652 (7 June 2023)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON WEDNESDAY THE 7TH DAY OF JUNE 2023 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ SUIT NO. A4/17/2023 EVELYN EFIA MINKAH ADUAMAH PETITIONER P. O. BOX MC 01222, TAKORADI VRS: FRANCIS ADUAMAH RESPONDENT NHIS REGIONAL OFFICE SEKONDI ------------------------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------------------- The petitioner petitioned for dissolution of the marriage contracted between her and the respondent on the 8th day of January 2010 with one issue of the marriage Michael Kyamasi Aduamah 11years of age respectively and sought for a decree of dissolution of the marriage contracted between them. Petitioner also sought for custody of the child of the marriage be granted to her with reasonable access to the respondent. The petitioner avers, the respondent has two children already before they got married. After the marriage she consented the two children of the respondent aged 9years and 14 years should stay with them in their matrimonial home. According to petitioner, occasionally the youngest of the two children of the respondent misbehaves in her presence and in the presence of the respondent as well however the respondent will rather scold her for not loving his two children and anytime these issues concerning the two children of the respondent comes up, respondent refuses to communicate with her and will be on his phone even when she is present avoiding her at all times. According to petitioner she had the information from persons known by herself and the respondent that the respondent has a girlfriend with whom he visits and sleeps over sometimes. The respondent refused to speak with her mother because she warned the alleged girlfriend to stay away from the respondent and his marriage. Petitioner further avers, the respondent claims she does not love his own two children as such he will not love her. According to petitioner there has been meetings scheduled to resolve their differences but all proved futile. The respondent has moved out of the matrimonial home since August 2022 and has since refused to respond to her frequent calls and messages and only resurfaced until the petition was filed in court. The respondent after been served with the petition filed an answer to same where he avers, the court should grant a decree of dissolution of the marriage between them. In addition, he prays for custody of the child of the marriage be granted to petitioner with reasonable access to him. Respondent avers, he and the petitioner got married on the 8th day of January 2010 and blessed with one child of the marriage namely Michael Kyamasi Aduamah 11 years of age respectively. According to the respondent, he had two children from his previous marriage who were 7years and 3years respectively prior to his marriage with the petitioner and he discussed same with the petitioner that he has children and she agreed before they finally got married. According to him after the marriage with the petitioner, he has to go back to his station at Somanya whiles the petitioner stays in her father’s house. In May 2015, he was transferred to Ada but requested for transfer to Sekondi to enable him have close contact with his family. According to him all this while he realized his second daughter was not being treated well by the petitioner which actually compelled him to request for transfer to Sekondi. Upon his arrival, they opted to reside at the petitioner’s father’s house since at the time his father-in-law was indisposed and he helped in taking him to the hospital and attending to most of his needs as he will do for his own father until he passed away on the 15th day of July 2019. According to him, in other to make sure his second girl bond with the petitioner, he barred the girl from having contact with her mother however on the 20th day of May 2020, the petitioner categorically told his second girl that she is not her mother and she should go back to her biological mother to stay with her in Somanya over a misunderstanding she had over sweeping with the little girl. Respondent further indicated that, he is aware every marriage has their own share of petty misunderstanding. As such like their marriage there has been petty misunderstandings between them for over six years but what broke the Carmel back in their marriage was when the petitioner accused him of having an affair with a Lady, he has been having conversations with for two and half years and instigated his mother and auntie to go to the said Ladies house to embarrass her in her absence. This act of the petitioner surprised him which made him to question her in respect of same respectively and even questioned whether the petitioner is misbehaving because he stays in her father’s house. As such, in August 2022, he moved out of the house to stay with a male friend of his and decided to stay temporarily with him. Whiles there he received a hint that he is due for transfer so he decided to hold on until the said transfer. All this while he continued to maintain the petitioner and perform her duties as a husband and also made an attempt at reconciliation as well. According to him all attempts by him to reconcile with the petitioner proved futile. As such following the failed countless attempts at settlement, he has no option than to consent to the decree of the marriage. He therefore prays the court for a decree of dissolution of the marriage. The issue for determination in this suit is whether or not the marriage between the parties has broken down beyond reconciliation. The petitioner bears the burden of proof on the balance of the probabilities that the marriage between him and the respondent has broken down beyond reconciliation. It is trite law that he who alleges must prove. In the case of ABABIO V AKWASI III (1994-1995) 2GBR, 774, the court held that: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue 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 his losses on that particular issue.” Similarly, in the case of BISI V TABIRI (1987-1988) 1GLR 360 the court stated thus: “the standard of proof required of a plaintiff in a civil action was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”. Although the petitioner, sought for ancillary relief, the ancillary relief, is subservient to the relief for dissolution of the marriage as such same cannot be granted until the relief for dissolution is granted. I shall therefore determine the issue for the dissolution of the party’s marriage before I deal with the issue of ancillary relief. The question is, has the marriage between the parties broken down beyond reconciliation, if so then then petitioner is entitled to a decree of dissolution of their marriage. It is trite that a court hearing a petition for divorce, is obligated to carefully consider all the evidence before it as a mere assertion by one party that the marriage has broken down. The court must consider whether the evidence adduce situate the case of the petitioner and respondent cross petition for dissolution of marriage within any of the grounds in section 2 of the MCA. Per section 1(2) of the Matrimonial Causes Act, Act 367 hereafter referred to as the MCA, the sole ground for the grant of divorce is that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation, any of the facts enumerated under section 2(1) (a) to (f) of the MCA must be proved by the petitioner and or the respondent in their respective evidence. This was explained in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) at page 202 where the respected judge said “From the relevant sections of the Matrimonial Causes Act 1971 Act 367 namely sections 1(2) and 2(1) and (3) the court ought to grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory on the petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation obviously on all evidence. Having establish these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation.” The petitioner alleges in his petition to the court, that whenever the younger child of the respondent from his previous marriage misbehaves, the respondent rather scolds her for not loving his children he brought to the marriage which leads the respondent not to talk to her nor have any form of communication with her. He would rather prefer to be on his phone all the time by way of avoiding her at all times. In addition, according to her she had a hint that the respondent has a girlfriend whom he frequently visits and sleep over. According to her, the respondent alleges she does not love hos children as such he will not love her. Respondent has moved out of the matrimonial home since August 2022 and all attempts by her family to settle their differences proved futile. It is worthy of note that, the respondent failed to cross examine the petitioner on her assertions. In the case of In Re Presidential Election petition: Akuffo Addo & 2ors (NO.4) v Mahama & 2 Ors. (No. 4) (2013) SCGLR (special edition) 73 at page 425 decided: “I accept the proposition of law that when evidence led against a party is unchallenged under cross examination, the court is bound to accept that evidence”. Similarly in the case of Ashanti Gold co. ltd v Westchester Resources Ltd (2013) 56 GMJ 84 at page 128, Korbieh J. A also decided: “the law is that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side.” See also the case of Takoradi flour Mills v Samir Faris (2005-2006) SCGLR 882 at page 890 and Fori v Ayirebi (1966) GLR 627 S. C Base on the above position of the law, the court accepts the assertion of the petitioner. The court finds that not having any form of communication with the petitioner because of misunderstandings that ensued with regard to the children of the parties the respondent behaved unreasonably. Respondent has stated in his evidence to the court that his younger daughter was been treated poorly and unfairly by the petitioner. The petitioner failed to take the two kids he had in his previous marriage as her own. This very assertion of the respondent was also never challenged by the petitioner either under cross examination or did she lead any evidence to the contrary. See the cases of FORI V AYIREBI SUPRA. As such base on the position of the law, the court accepts that, the petitioner also failed to treat the two kids of the respondent well as he alleged since she failed to cross examine on same. That notwithstanding, this shouldn’t have caused so much misunderstandings between the parties for it to lead to break down of communication among the parties. Indeed, the parties should’ve sat down to settle their differences amicably in other not to affect the children of the marriage in order to reach an amicable settlement. The court finds that both parties behaved unreasonable in respect of this. According to the petitioner the respondent has a girlfriend with whom he visits and stays over at the alleged girlfriend’s house. The petitioner is alleging adultery on the part of the respondent. The respondent again never challenged the assertion of the petitioner under cross examination he rather sought to state that it was a girl she has been having conversations with for two and half years as such he was surprise when the petitioner alleged adultery on his part. As with the cases supra thus FORI V AYIREBI and the rest Supra, the respondent failure to cross examine on same, the court finds that indeed he had a girlfriend as alleged by the petitioner. All parties are ad idem about the fact that there has been attempts at settlement by families but all proved futile. The evidence before the court shows that the parties failed to resolve their differences thereby causing a wear and tear of their marriage life. Both parties admitted that there have been several attempts at settlement by families as well as themselves but all proved futile. The failure to settle their differences proves the irreconcilable differences between the parties. In the circumstance I so find per section 2 (1) (F) of the MCA. In the case of KOTEI V KOTEI (1972) 2GLR 172, the court held: “Once the facts are proved bringing the case within any of the facts set out in 2(1), a decree of dissolution should be pronounced unless the court think otherwise……….” The court per the evidence before it, is satisfied that the marriage between the parties has broken down beyond reconciliation. In view of the foregoing this court accordingly decree a dissolution of the marriage contracted between the parties on the 9th day of January 2010 per the marriage certificate filed to the court with certificate no TPC/001/2010 with licensed number STMA/ 502/2009 hereby cancelled. In respect of the ancillary reliefs, the petitioner is seeking for custody of the child of the marriage be granted to her. This was corroborated by the respondent who also admitted custody of the child of the marriage Michael Kyamasi Aduamah aged 11years be granted to the petitioner. In view of the forgoing this court herby grants custody of the child of the marriage Michael Kyamasi Aduamah to the petitioner with reasonable access to the respondent. The respondent can go for the child and spend time with him during weekends but to make sure to return the child latest by 3pm on Sundays to enable the child prepare for school in addition Respondent can go for the child during school holidays and vacations to spend time with the child but he is to make sure to return the child when school resumes to enable the child prepare for school. In addition, the respondent is ordered by the Court to maintain the child of the marriage GHC1000.00 each month he is also ordered to pay the medical bills and pay school fees of the child as and when the need arises. There will be no order as to cost to foster goodwill between the parties. I live the parties with this Egyptian proverb “a beautiful thing is never perfect “ (SGD) CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) REPRESENTATION PARTIES APPEARED PRO SE. Ladd* 9