ADJEI VRS DONKOR (A13/01/2021) [2023] GHADC 824 (27 October 2023)

Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 IN THE DISTRICT COURT HELD AT BIBIANI, WESTERN NORTH REGION ON FRIDAY THE 27TH DAY OF OCTOBER, 2023 BEFORE HER WORSHIP VICTORIA VERA AKONU ESQ., THE DISTRICT MAGISTRATE BERNARD ADJEI Of Bibiani VRS. SARAH DONKOR Of Bibiani SUIT NO: A13/01/2021 ………… PETITIONER ………… RESPONDENT PARTIES: Present _____________________________________________________________________________________ _____________________________________________________________________________________ J U D G M E N T This divorce petition was filed by the Petitioner in the Registry of this Court on 15th June, 2021. The Petitioner is seeking for the dissolution of the ordinance marriage celebrated between him and the Respondent on 10th June, 2006 at the Roman Catholic Church – Bibiani. The Respondent has also crossed petitioned and is seeking the following reliefs: (a) Dissolution of the marriage (b) GHS40,000.00 for alimony e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 (c) GHS3,500.00 being financial assistance rendered to the Petitioner (d) An equitable share of five (5) bedroom self-contained located at Degede-Bibiani. (e) An order of the Court to compel the Petitioner to maintain the four (4) children born to him at Three Thousand Ghana Cedis GHS3,000.00; that is One Hundred Ghana Cedis (GHS100.00) a day. (f) Any other order(s) that the Honourable Court may deem fit. Whereas the Petitioner is a Miner, the Respondent is a Professional Teacher. Both Parties have agreed to the dissolution of the marriage. The duty of the Court therefore is to find out whether there is any basis to grant the divorce. The marriage is blessed with four (4) children. THE CASE OF THE PETITIONER The evidence of the Petitioner is that he got married to the Respondent at the Roman Catholic church – Bibiani branch on 10th June, 2006. He tendered the marriage certificate in evidence which was admitted and marked as Exhibit “A” to support his claim. He avers that during the subsistence of the marriage the Respondent confessed that she had committed adultery. Based on this, families of the parties met and the issue was settled with the promise by the Respondent that she will not repeat this act again. He avers further that even though the Respondent promised not repeat her behaviour, the Respondent has reneged on her promise and has repeated same and for that matter he has lost interest her and do not love her any e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 more. Hence this action praying for the dissolution of marriage. He states that this problem has existed 15 years ago as at the time of issuing this petition. He tendered in evidence his pay slip and Bank Statement which were admitted and marked as Exhibits “B, C” and D respectively. THE CASE OF THE RESPONDENT She denies the alleges of the Petitioner and states that she has never had any sexual intercourse with any man. She states that after this Court differently constituted referred the matter for reconciliation, the Petitioner and his family were not ready for the reconciliation. She avers that the Petitioner has rather deserted her and this problem had existed for 2 years as at the time she responded to the petition. According to her, they acquired and jointly construct a five (5) bedroom house, with a hall, kitchen and a study room located at Degede, a suburb of Bibiani. She states that the Petitioner persuaded her to secure a loan of Thirty-Five Thousand Ghana Cedis (GHS35,000.00) from Upper Amenfi Rural Bank and SG Ghana and for the past 6 years the Petitioner has refused to pay. She states again that the Petitioner also collected Five Thousand Ghana Cedis (GHS5,000.00) that he was going to complete two of the rooms in the five bedroom that they were constructing for her to move in with the 4 children of the marriage but he has failed to honour this promise making her and the children still living in a rented house. e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 She avers that for four (4) years the Petitioner refused to pay electricity bills and for that matter the Electricity Company of Ghana (ECG) has removed the meter and they are living without power (light). She therefore prays for the marriage to be dissolved and her reliefs endorsed on her Answer granted. She tendered in evidence her February and March 2023 pay slip which were admitted and marked as Exhibits “1 and 2” respectively. ISSUE FOR DETERMINATION Whether or not the marriage between the Parties herein has broken down beyond reconciliation to warrant a dissolution? APPLICABLE LAW/BURDEN OF PROOF Under Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for the grant of a decree of divorce is that the marriage has broken down beyond reconciliation and Section 2 (1) specifies facts, one or more of which the Petitioner or a Respondent who has cross-petition must establish for the purposes of showing that the marriage indeed has broken down beyond reconciliation. Section 2 (1) of Act 367 provides as follows: (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 the Petitioner cannot reasonably be expected to live with the Respondent; e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 (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 parties to the marriage have, after diligent effort, been unable to reconcile their differences. Per Section 1 of Act 367, the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. A Party has the burden to adduce sufficient, cogent and reliable evidence to prove the allegations contained in his/her case in order for the Court to arrive at a decision that the facts alleged in his/her case exist rather than its non-existence. The Petitioner, by law has a burden to prove his case to the standard required in civil actions, that is on a balance of probabilities as required in Sections 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 The Petitioner must adduce 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. In the case of SAKORDIE VRS. F. K. A. CO. LTD [2009] SCGLR 65 @ 69 where it was held as follows: “It is also provided in the Evidence Act, 1975 (NRCD) Sections 11(4) and 12 as follows: “11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” A careful reading of the petition shows that the petition is based on adultery whiles the Respondent has also based her cross petition on desertion. According to Section 43 of MCU, Act 367 adultery means the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse. The Petitioner alleges that the Respondent has had sexual intercourse with a certain man. This could be found on Section 2 (1) (a) of MCU, Act 367 that is adultery. For a claim of adultery to suffix, the burden is on the Petitioner or the person who alleges to prove. See the case of QUARTEY VRS. QUARTEY & ANOR. [1972] 1 GLR @PG 6 where it was held as “The burden of proving adultery lies on the persons who alleges it and it cannot be shrugged off by evidence that is tainted, indifferent, suspicious or uncertain. The standard of proof required is proof beyond reasonable doubt that is, it must be proved with the same e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 degree of strictness as is required for the proof of a criminal offences”. Petitioner must prove that the adultery has been committed and for that matter, he finds it intolerable to live with the Respondent. It must also be established that there has been penetration of the woman by the another man other the husband. Adultery by its nature is very difficult to prove unless the adulterer is caught in the act. However according to Mrs. Frederica Ahwireng Obeng, in her book titled “At a glance contemporary principles of family law in Ghana, first edition 2015 at pages 107 and 108, adultery can be inferred from the circumstances surrounding a case, voluntary confession made by the adulterer, if the Petitioner has contracted a sexual transmitted disease from the Respondent, if a child is born by the Respondent who is not the child of the Petitioner and where a married person is caught having sex with a person who is not his/her spouse. The Petitioner alleges that the Respondent has told someone that she had committed adultery. (An allegation the Respondent has denied) However, in both his petition and the witness statement he did not lead any evidence to establish his claim. When he was asked under cross examination if he had caught the Respondent with any man, he answered in the negative. This is what transpired on 26th April, 2023 when the Respondent cross examined the Petitioner: Q: You have stated that I have committed adultery and that is the reason for this divorce? e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 A: Yes. Q: You have never caught me and any man? A: Yes, but you are the one who confessed as you informed someone who also told me. The person is my witness. The above is admission that the Petitioner has not seen or caught the Respondent with any man. Proof in law was explained in the case of MAJOLAGBE VRS. LARBI [1959] GLR 190 @ 192 as “proof, in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g by producing documents, description of things, references to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true” All what the Petitioner did was to repeat his averments in his affidavit attached to his petition on oath in his witness statement. He also did not call the person he alleges that the Respondent has confessed to committing adultery, to lead evidence to support his allegations. It is my considered opinion that if there exist anyone like that, the Petitioner would have called him/her to support him. There is also no evidence on record of any acts or actions by the Respondent for the Court to have inferred or come to the conclusion that the Respondent has committed adultery. e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 I therefore find for a fact that the Petitioner has not discharged the burden on him by leading credible and reliable evidence to prove his case against the Respondent. I know proceed to determine if the Respondent has proved her allegation of desertion on her cross petition. Desertion is at Section 2 (1) (c) of MCA, Act 367 and it must be for a continuous period of two (2) years. Section 43 of MCA, Act 367 which is the interpretation section, does not define what constitute desertion. However in the in her book titled “At a glance contemporary principles of family law in Ghana, first edition, 2015; Mrs. Frederica Ahwireng Obeng, she explains desertion as “the unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently”. Also in the Black’s law Dictionary 19th Edition, Desertion is defined as “the willful and unjustified abandonment of a person’s duties or obligation, especially to military service or to a spouse or family”. In family law, the five elements of spousal desertion are: (1) (2) (3) (4) (5) a cessation of cohabitation, the lapse of a statutory period, an intention to abandon, a lack of consent from the abandoned spouse and a lack of spousal conduct that might justify the abandonment” For desertion to succeed the above elements must be established. e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 It is not in doubt that the Parties are living separately and apart from each other as the Petitioner confirmed to the Court that he has left the matrimonial home and left the Respondent and the children of the marriage. The only requirement that the Respondent/Cross Petitioner has to prove according to Section 2 (1) (c) of Act 367 is that the Respondent in this case the Petitioner has deserted the Petitioner on the cross petition for a continuous period of 2 years before the petition was filed. The undisputed evidence before the Court is that the original Petitioner (husband) has left the Respondent and the children of the marriage for over 2 years. In the opinion of the Court, the Petitioner has left the matrimonial home because he has the intention of abandoning his family and this is without the consent of the Respondent. I accordingly, find and hold that the Petitioner (husband) has deserted the Respondent/Cross Petitioner as all effort made by the family of the Respondent to reconcile the parties have proven futile. Having held as such, I declare that marriage between the parties herein has broken down beyond reconciliation. On account of this conclusion, I will grant the order for the dissolution of the Parties marriage celebrated under the Marriage Ordinance (CAP 127) on 10th June, 2006 on the grounds that the Petitioner herein has deserted the marriage. 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 Accordingly, the marriage certificate No. AY1399610 in respect of their marriage is duly cancelled. ANCILLIARY RELIEFS Respondent’s reliefs The Respondent is seeking for an alimony of Forty Thousand Ghana Cedis (GHS40,000.00). Her basis for demanding this is that she has been married to the Petitioner for over 17 years and was married at the age of 23 years. This is what transpired on 7th July, 2023 when the Petitioner sought to cross examine the Respondent that she is not entitled to the alimony: Q: I am putting it to you that you are not entitled to the alimony of GHS40,000.00 A: I am entitled to the alimony. Q: Why are you entitle to that money? A: I am entitled to the alimony because at the time you married me, I was only 23 years and I have served you ever since. I have cooked, washed for you and you have brought me here for divorced with four (4) boys. Q: I cannot pay that money because of your behaviour? A: I am entitled to that money. The impression I get from the above is that, it is not that the Petitioner cannot afford the alimony, but it is because of the behaviour of the Respondent, which behaviour was not made known to the Court. 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 Section 20 (1) of Act 367, 1971 allows the Court to make an order for payment of financial provision as settlement or the provision of immovable property as settlement right to a spouse upon dissolution of marriage. Even though an order was made for the Petitioner to file his current pay slip for the months of March, April and May, 2023, he chose to file only that of April and his Bank Statement from August 2022 to February, 2023 all on 14th June, 2023 which were admitted and marked as Exhibits C and D respectively. Does the Petitioner want the Court to believe that after 28th February, 2023 no salary or money was paid into his account? It is my candid opinion that this is a calculated attempt by the Petitioner to outsmart the Court. The Court upon taking all the facts and evidence together holds that the Respondent deserves to be settled financially to reimburse her for the number of years that she spent with the Petitioner, cooking, washing and performing marital duties that has produced four strong boys. I therefore order the Petitioner to pay a lump sum alimony of Thirty Thousand Ghana Cedis (GHS30,000). On relief 3, even though on the Answer, it is Three Thousand Five Hundred Ghana Cedis (GHS3,500.00) in her witness statement and during cross examination it came out that it was Thirty-Five Thousand Ghana Cedis (GHS35,000.00) that the Respondent is seeking. The Respondent however, did not tender any evidence or document to support her claim and for that matter I am unable to grant this relief. 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 The next is the equitable share of the 5-bedroom room house located at Degede-Bibiani which was acquired during the substance of the marriage. The Respondent has stated at paragraph 8 of her witness statement that “during the existence of the marriage myself and the Petitioner were able to jointly construct a five (5) bedroom, a hall, kitchen, a study room etc self-contained apartment at Degede a suburb of Bibiani”. This is a very vital evidence which the Petitioner ought to have cross examined the Respondent yet he failed to do so. The effect of failing to cross examine a witness on a material evidence is that that party has admitted that evidence. See the case of DANIELLI CONSTRUCTION LTD VRS. MABEY & JOHNSON LTD [2007-2008] 1 SCGLR 60 @ 65 The Respondent has contributed to the acquisition of the house and this is what transpired during cross examination of the Respondent by the Petitioner on 7th July, 2023: Q: where is your evidence that I made you collect the loan? A: You were collecting and asking for financial assistance and the GHS5,000.00 you took to continue the building project of which you did not use it for that purpose. Q: I have not collected any loan from you” A: You collected the GHS5,000.00. It was even our children who persuaded me to give you that money since you said you were going to use it to complete the building project for us to move in. 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 Q: The money you gave me was GHS4,000.00 and you gave that money to support the building that is ongoing? A: It was GHS5,000.00 and you also asked me to collect that money that is the GHS35,000.00 for the building project. Q: I am putting it to you that I do not know anything about any loan of GHS35,000.00 A: It is all the money that you have collected from me ever since we got married about 18 years that I have put all together. Q: So you have not collected any loan of GHS35,000.00 for me? A: All those monies you collected from me were loans I collected from the bank. I collected the loan and you took or asked for same from me. From the above cross examination and answers the Petitioner admits that the Respondent has contributed to the acquisition of the property. Article 22 (3) of 1992 Constitution “With a view to achieving the full realization of the rights referred to in clause (2) of this Article – (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 Fortified by the above evidence and the decision in MENSAH VRS. MENSAH [2012] 1 SCGLR 391, I find and hold that the Respondent is entitled to equal share of the 5 bedroom acquired by the parties acquired their marriage. On the normal circumstance, I would have ordered for the said house to be valued, sold and the proceeds shared among the Parties herein. However, the Respondent is living in a rented place with the four boys of the marriage and it took the intervention of the Court for the Petitioner to pay the rent and restore electricity to the said rented house even when one of the children was about to write his BECE exams. The Court having taken notice of the above, I will order that the said 5 bedroom house located at Degebe in Bibiani, be shared equally between the parties so that the Respondent will live there peacefully with her 4 boys. This means that the children will continue to live with the Respondent with reasonable access to the Petitioner until otherwise. The Petitioner will maintain the 4 children with GHS2,500 a month to be increased by 10% yearly. He will also be responsible for the educational and medical needs of the children whiles the Respondent will be responsible for clothing and living with the children: I award cost of Two Thousand Ghana Cedis (GHS2,000.00) in favour of the Respondent and against the Petitioner. SGD. VERA V AKONU DISTRICT MAGISTRATE 1 e g a P Bibiani District Court – Bernard Adjei vrs. Sarah Donkor – Suit No. A13/01/2021 1 e g a P