Antobam Vrs Antobam [2023] GHACC 379 (5 July 2023)

Elizabeth Antobam v Richard Antobam IN THE GENDER-BASED VIOLENCE CIRCUIT COURT, SEKONDI-W/R, HELD ON WEDNESDAY, 5THJULY 2023 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ..................................................................................................................................... C4/24/2021 ELIZABETH ANTOBAM PETITIONER v RICHARD ANTOBAM ..................................................................................................................................... RESPONDENT PETITIONER: PRESENT& PRO SE RESPONDENT: ABSENT ..................................................................................................................................... JUDGMENT Or. 36 r. 1 (2) (a) & 37 r. 2 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) provides, respectively that; “Where an action is called for trial and a party fails to attend, the trial Judge may where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim” “It is the duty of parties, their lawyers and the Court to avoid all unnecessary adjournments and other delays, and to ensure that causes or matters are disposed of as speedily as the justice of the case permits” In the Rep. v High Court (Fast Track Division), Accra; Ex parte Francis NiiAyikai [2015] 81 GMJ 72@87 per Owusu JSC held that a person who intentionally spurns the opportunity to be heard cannot rely on the audialterampartemrule. Indeed, that “where therefore he [a lawyer] and his client disabled themselves from being heard in the proceeding, he cannot turn round and accuse a court of breaching the rules of natural justice”. A similar Page 1 of 6 Elizabeth Antobam v Richard Antobam holding was made in Rep. v High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009]SCGLR 185 @190per Wood CJ., SC. In the instant case, Respondent neither enteredan Appearance to the petition nor filed Pleadings as required by Orders 9, 11 and 65of C. I. 47. He was present in Court on two occasions; at the first call when the matter was referred to the parties’ respective families for attempted reconciliation and the second to Court Connected Alternative Dispute Resolution (CCADR) for court-supervised reconciliation when the first reference failed because Respondent did not attend the meetings arranged by the families. Apart from these two instances, the Respondent did not attend Court again. Respondent also failed to file any other process or participate in the hearing of the matter despite service on him of the Pleadings and several Hearing Notices. Under the circumstances, this Court enabled the rule under Or. 36 r. 1(2)(b), C. I. 47, and conducted a hearing with only Petitioner in attendance to prove her case. In herpetition, the Petitioner prayed for the dissolution of the marriage, an order for maintenance of the children of the marriage, custody of the children with reasonable access to the Respondent, and an order that the Respondent provides for the educational needs of the children. In further particulars of her Pleadings, Petitioner testified on 30/03/2023 in the discharge of the burden on her ‘to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court’ and ‘to introduce sufficient evidence to avoid a ruling against him on the issue’ as required by ss. 10(1), 11 (1) & (4) of the Evidence Decree, 1975 (NRCD 323). See the cases ofNDK Financial Services v Ahaman Enterprise Ltd., Attorney General & Alex A. Aduko [2021] DLSC 10690 andZabramav Segbedzi [1991] 2GLR. Page 2 of 6 Elizabeth Antobam v Richard Antobam 221-247 on the two burdens of proof on a party that seeks to prove a matter in his favour. Petitioner testified that the marriage has broken down beyond reconciliation because Respondent behaved in the most unreasonable way towards her and the children. She told the Court that in the past six (6) years, Respondent had completely failed to maintain both her and the children, failed to take care of the children’s educational and health needs, intermittently abandoned the matrimonial home without recourse to Petitioner or informing her of his whereabouts, sometimes for six-month periods at a time and threatened her with death based on false allegations of adultery when in fact he was the adulterer. Without the benefit of Respondent’s presence to cross-examine Petitioner and test her credibility as well as that of her testimony as provided for by Or. 38 r. 3F, C. I. 47, the Court could only proceed on the evidence made available to it to arrive at a decision. Petitioner did not call a witness to testify or corroborate the averments she made. Upon conclusion of the hearing, the issue settled for determination was whether or not Petitioner proved the grounds for the grant of a divorce decree”? s. 2(1) (a-f) of the Matrimonial Causes Act, 1971Act 367 states the six (6) grounds for a petition for divorce, proof of which, singularly or collectively, will prove that a marriage has broken down beyond reconciliation. I rely on the entirety of the Petitioner’s evidence-in-chief, particularly, the following at page 10 of the Record of Proceedings to make a finding of fact that she proved that the marriage contracted between her and Respondent had broken down beyond reconciliation. “He threatened to kill me whenever he comes to Effiakuma to visit us from AssinFosu where he now lives. It is his mother’s hometown. He keeps coming to Effiakuma at my Page 3 of 6 Elizabeth Antobam v Richard Antobam workplace to create a scene threatening that should I leave him; he will kill me. Now I always have my son William with me especially when I am going home because he has been stalking me and threatening to kill me. He has been doing it since I filed the case in Court. I feel cheated because he has married me, had 4 children with me, keeps embarrassing me publicly at my workplace, and sold the only property that we acquired during the marriage. For these reasons, I want a divorce so I can be free. In addition, from paragraphs 8(a-e), 9 & 10 of Petitioner’s Pleadings, I find that the grounds of unreasonable behavior, living apart for more than five (5) years and inability to reconcile differences has been proved as required by s. 2(1)(b), (e)&(f) of Act 367, reproduced below; 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: (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (e) that the parties to the marriage have not lived as man 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. In the locus classicus Kotei v Kotei [1974]2 GLR 172,Sarkodee J noted that; “once the facts are proved bringing the case within any of the facts set out in s. 2(1)(e) a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the court’s power. Once he or she comes within any one of the provisions in s. 2(1) (e) and (f), the presumption is in his favour; proving one of the provisions Page 4 of 6 Elizabeth Antobam v Richard Antobam without more is proof of the breakdown of the marriage beyond reconciliation. Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage … As the provision of the Act stands, it seems no blame need be attributed to either party and there may be no passing of any sort of moral judgment. There may be no need to label one or the other party as technically innocent even though the conduct of both has brought about the breakdown of the marriage” At page 128 of Frederica Ahwireng-Obeng’s “Contemporary Principles of Family Law in Ghana”, she explained that ‘if the parties are separated … and carry on living independently without each other’, they will be deemed not to be living as ‘man and wife’. From the evidence before me, I find that the marriage between the parties has broken down beyond reconciliation. DECISION The petition for divorce is granted on the finding that the marriage has broken down beyond reconciliation upon proof of section 2(1)(b), (e) & (f)of Act 367. On the authority of s. 42 (1) (b) of the Courts Act, 1993 (Act 459) I hereby decree that the marriage celebrated between Elizabeth Antobam and Richard Antobamon 25/12/2005 at the Church of Pentecost, Takoradi is dissolved and a certificate of divorce shall issue. ANCILLARY ORDERS Custody of Johnson Mensah (16 years) is granted to Petitioner, who shall be the primary caregiver, with reasonable access to Respondent. This order shall remain until the child turns 18 years whereupon a review of this custody order may be applied for. Page 5 of 6 Elizabeth Antobam v Richard Antobam Being of adult age, the prayer for custody of Salomey Mensah (25 years), Erica Mensah (23 years) and William Mensah (18 years) as at 2020 when the petition was filed, is refused. Without proof of either party’s income, Respondent is ordered to pay monthly maintenance of GHC500 to Petitioner for the upkeep of their last child, effective June 2023. Respondent is further ordered to pay the school fees and medical costs incurred by or on behalf of Johnson Mensah. Costs GHC2, 000 is awarded in favour of the Petitioner. ................................................................... H/H NAA AMERLEY AKOWUAH (MRS.) Page 6 of 6