Kyereboah Vrs Maccarthy [2023] GHADC 577 (11 July 2023)

IN THE DISTRICT COURT HELD AT AGONA AHANTA ON TUESDAY THE 11TH DAY OF JULY, 2023. BEFORE HER WORSHIP BERNICE ODURO KWARTENG – MAGISTRATE BETWEEN: WR/AA/DC/A4/9/2023 DORIS KYEREBOAH PETITIONER AND CHARLES MACCARTHY RESPONDENT JUDGMENT On December 23 2017, Charles Maccarthy, the respondent herein lawfully took to wife at the Assemblies of God Church, Ketan, Doris Kyereboah, the petitioner herein under the Marriages Act 1884-1985 (CAP 127). After the said marriage, the parties lived apart but occasionally visited each other as the petitioner lived at Tarkwa and the respondent at Edum Banso. There are two female issues of the marriage aged 3 years, 10 months and 8 months at the time of the filing of the petition. The petitioner is a pharmacy assistant and the respondent a businessman. The wife has filed a petition for divorce disclosing the following facts: a) That the respondent is insensitive to the plight of the petitioner and his two children b) That the respondent left the matrimonial home leaving his two (2) months old daughter after he had engaged in extra marital affairs c) That the respondent is in amorous relationship with ladies among which are Mercy Efua Baidoo and Gloria Ackah d) That the respondent is currently living with one Barikisu Mahama whom he has performed her marital rites at Garu Tempane in the Northern Region of Ghana and live with her in the same room…. At the trial, the petitioner relied on her witness statement filed on November 15 2022 as her evidence-in-chief. Petitioner testified that six months into the marriage, the respondent’s attitude changed and petitioner informed her father Mr. Peter Kyereboah about it who then extended an invitation to the respondent on four occasions but none was honored by the respondent. Petitioner got to know that the respondent was having extra marital affairs. The petitioner together with her father and a family member went to respondent and his family at Edum Banso to settle their misunderstanding which only yielded temporary results. The respondent continued having extra marital affairs and has currently contracted another marriage with a lady called Barikisu Mahama. The respondent has reneged on his responsibilities as a father and a husband and has failed to maintain their home, however, respondent owes petitioner an amount of GHC9,400.00 being loan petitioner acquired for respondent to purchase a plot of land, children’s medical bills, maintenance and money expended on their child’s naming ceremony. There was no cross-examination of the petitioner as the respondent without any justifiable excuse after having been served with hearing notices and court notes failed to appear in court for the trial. The petitioner filed a witness statement for her witness, Peter Kyereboah, but failed to call him to testify at the trial nor rely on the witness statement as hearsay evidence. The court shall therefore not attach any probative value to same in the determination of this petition. From the facts of the case, the issues for determination by the court are:  Whether or not the marriage celebrated between the parties on December 23 2017 has broken down beyond reconciliation  Whether or not custody of the children of the marriage should be granted to the petitioner or the respondent. Section 47(1)(f) of the Courts Act 1993 (Act 459) provides that a District Court shall within the area of its jurisdiction have civil jurisdiction in divorce and other matrimonial causes or matters and actions for paternity and custody of children. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) also provides that the sole ground for the grant of a decree of divorce is that the marriage has broken down beyond reconciliation. Section 2 (1) of Act 367 prescribes facts, one or more of which a petitioner must establish for the purposes of showing that the marriage has broken down beyond reconciliation as follows: ”a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent: or c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or d) the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consent to the grant of a decree of divorce; provided that such 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 notwithstanding the refusal; 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." Section 2 (3) of Act 367 further provides that notwithstanding that 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. It is trite learning that in civil cases, the plaintiff or the petitioner as pertains to this case is required to adduce sufficient evidence to substantiate his claim on the preponderance of probabilities as stated in sections 10, 11(1) and (4), 12 and 14 of the Evidence Act 1975 (Act 323). These sections on the burden of proof, burden of persuasion and burden of producing evidence provide thus: “10. (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party…. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities… (2) ‘Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. 14. Except as otherwise provided by law, 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 Ababio v Akwasi III [1994- 1995] 2 GBR, 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. 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." Similarly, in the case of Ackah v Pergah Transport Ltd & Others [2010] SCGLR 728, the Supreme Court held that "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 claims may fail…. This is a requirement of the law on evidence under Sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)." In Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 at 733, the Supreme Court speaking through Benin JSC had this to say: “It must be pointed out that in every civil trial all what the law required is proof by 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. The law does not require that the court cannot rely on the evidence of a single witness in proof of the point in issue. The credibility of the witness and his knowledge of the subject-matter are determinant factors: See Armah v Hydrafoam Estates (Gh) Ltd [2013- 2014] 2 SCGLR 1551.” The petitioner who is by law required to adduce credible evidence in support of her claims testified that the respondent has abandoned her and their two children whilst he, the respondent, is frolicking with other women. The court has no reason to disbelieve petitioner’s account because respondent failed to partake in this trial and cross-examine the petitioner to disprove or discredit the evidence adduced by the petitioner. See the case of Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 holding 1 where their Lordships held that: “the law is well-settled (as held by the trial court and affirmed by the Court of Appeal that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court." The gravamen of the petitioner’s case is that the respondent is no more interested in his marriage with the petitioner because he has married another woman and thereby has committed adultery. To substantiate and prove the fact of adultery, in the case of Adjetey v Adjetey [1973] GLR 216, Sarkodee J held that direct evidence of adultery is rare. In nearly every case the fact of adultery is inferred from circumstances which by fair and necessary inference lead to that conclusion". In the book, "Family Law in Ghana" by William E. Offei, 4th Edition at page 194, the learned author, cited the case of Hume V. Hume & McAuliffe [1965] Times, Feb 25 and wrote that "a finding of adultery was made against a wife on the evidence that she had given birth to a child of whom blood tests established that the husband could not be the father". Therefore, inferring from the fact that the respondent has contracted another marriage whilst his monogamous marriage with the petitioner herein is subsisting, the court finds the fact of adultery established against the respondent. It is pertinent to state that the respondent was given enough opportunity to respond to the processes filed and served on him by the petitioner in compliance with the audi alteram partem rule but the respondent ignored all the hearing notices and court notes. The court satisfied itself that the respondent was duly notified during every stage of this divorce proceedings. Therefore, the court cannot be said not to have held a trial as happened in the case of Charles Akpene Ameko v Saphira Kyerema Agbenu (Suit No H1/20/2014 dated 11th March 2015) also reported in 2015 99 GMJ 202. His Lordship Justice Dennis J. A. in the Charles Akpene case opined that “the trial Circuit Judge dissolved the marriage without evidence. The combined effect of Sections 1 and 2 of the Matrimonial Cause Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proved 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. The court is further mandated to inquire into the facts alleged by the parties to the suit. Section 2 (2) and (3) of the Matrimonial Causes Act 1971 (Act 367) provides 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 satisfied, on all the evidence, that the marriage has broken down beyond reconciliation”.(emphasis mine). The failure by the trial Circuit Judge to take evidence in the matter before dissolving the marriage is contrary to sections 1 and 2 of the Matrimonial Causes Act 1971 (Act 367) and it is therefore a nullity.” This court in the instant case conducted trial and took evidence as is required by the principles of natural justice, the provisions of Matrimonial Causes Act 1971 (Act 367) and the rules of court. Amissah JA, sitting in the High Court in 1968, expressed a clear view to the effect that non-compliance with the audi alteram partem rule results in nullity of the subsequent proceedings. He said in Vasquez v Quarshie [1968] 2 GLR 62 at p. 63 that: “But no court is, to my mind, entitled to call upon a plaintiff to proceed with the proof of his claim if it is aware that the defendant has not been notified of the hearing… A court is only entitled to give a judgment in default if the party fails to appear after notice of the proceedings has been given to him. In Republic v High Court, Accra; ex parte Salloum & Ors (Coker, Interested Party), Suit No. J5/4/2011, unreported judgment of the Supreme Court, delivered on 16th March 2011, Anin Yeboah JSC, delivering the majority opinion of the court, said: “The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.... It is our opinion that as this court has in several cases held that a breach of the rules of natural justice renders proceedings a nullity, we will declare that the applicants have sufficiently made a case to warrant our supervisory intervention.” The Supreme Court in the recent valedictory judgment of His Lordship Dotse JSC in the case of Republic v High Court, Tema; ex parte Yaw Godwin Dorgbadzi & Another (Michelle Dapaah & Another Interested Parties) Civil Motion No. J5/08/2023 dealt extensively with the principle of audi alteram partem and espoused its historical antecedents. At page 27 of the judgment, the court held that “from all the above respected authorities referred to supra it can safely be concluded that, where a party, such as the Applicants in the instant case, were denied and or prevented by carefully designed and well-orchestrated machinations to be heard in the prosecution of their case which they had put forward in a court, there is nothing so serious as their denial to the age old principle of the audi alteram partem rule of natural justice, to wit the right to a hearing.” The facts and circumstances pertaining to this case can be distinguished from the above cited cases. The respondent herein was afforded the opportunity to make his case whether in support of or in denial of the allegations put forward by the petitioner. However, the respondent chose to disregard the court processes and failed to respond or attend court after several hearing notices and court notes were served on him. Hence the audi alteram partem principle was upheld by the court to the advantage of both parties in the instant case. The inference I make from the evidence presented by the petitioner and the conduct of the respondent throughout the trial shows that the parties are no longer interested in the marriage and therefore wish to seek alternative lives. My conviction is cemented the more with the fact that the respondent appeared nonchalant about this suit and totally ignored to respond to any processes served on him or contest the matter and therefore goes to show that attempts at reconciliation have been abortive. I do not see the need not to grant an order for dissolution of the marriage between the parties when the respondent has already broken the marriage vow and contracted a second marriage. On the totality of the evidence, the court finds that the marriage has broken down beyond reconciliation. On the issue of custody of the two children, the principle which our courts have accepted as paramount in considering the grant of an order of custody of children is the welfare principle: see Gray v. Gray [1971] 1 G. L. R. 422; Beckley v. Beckley [1974] 1 G. L. R. 393 and Braun v. Mallet [1975] 1 G. L. R.81. Hence, considering the welfare of the two infant female children, the petitioner is best placed to have custody of them with reasonable access to the respondent. In the course of the trial, the court granted an application for maintenance pendente lite in the following terms: 1. the respondent is to maintain the two children of the marriage with GHC1,000.00 per month by paying same to the petitioner 2. the respondent is to pay to the petitioner maintenance arrears for the period of 7 months preceding the application an amount of GHC7,000.00 for the 7 months period The respondent is ordered to continue maintaining the children as was earlier ordered in the interlocutory ruling of the court on maintenance above quoted. For purposes of clarity, the respondent is to pay GHC1,000.00 monthly as maintenance for the two children and settle all the maintenance arrears. The respondent is further ordered to cater for the educational needs of the children when they both attain school going ages. The petitioner is to cater for the medical needs of the children and all the miscellaneous expenses she would incur in the daily lives of the children. Section 20 of the Matrimonial Causes Act provides that; (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. (2) Payments and conveyances under this section may be ordered to be made in gross or by installments. Indubitably, it is not inconceivable that the petitioner is entitled to financial provision having regard to the circumstances of the marriage which culminated into this petition for divorce. The facts of the case reveal that the respondent has not treated the petitioner fairly. The respondent is said to be a businessman who is doing well and has been able to take on another wife even though such act is illegal and criminal under our laws. The children are still infants and have a long way to go before they can be independent and this would affect the petitioner’s marketability in finding suitors if she wishes to marry again. The petitioner also testified that the respondent owes her an amount of GHC9,400.00 being loan petitioner acquired for respondent to purchase a plot of land, children’s medical bills, maintenance and money expended on their child’s naming ceremony. Consequently, the respondent is ordered to pay to the petitioner as alimony a lump sum of GHC30,000.00. The court decrees that the marriage celebrated between the parties under the Marriage Ordinance 1884-1985 (CAP 127) on December 23 2017 at the Assemblies of God Church, Ketan, with certificate number WMC AG 33 per licence number STMA/RM/1443/17, be dissolved. The said marriage certificate is hereby cancelled. A copy of the divorce certificate is to be served on the Registrar of Marriages by the parties for the amendment of the records thereof. ………………………………………….............. H/W BERNICE ODURO KWARTENG (DISTRICT MAGISTRATE) 11