AZALETEY VRS BAAH (C5/67/22) [2023] GHACC 785 (24 November 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 24TH DAY OF NOVEMBER, 2023, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/67/22 GLORIA ESI AZALETEY ----- PETITIONER VRS. MICHAEL KWAKU BAAH ----- RESPONDENT PARTIES PRESENT NO LEGAL REPRESENTATION FACTS: JUDGMENT The petitioner herein, a Caterer and the respondent, an Engineer lawfully got married under Part III of the Marriages Act, (1884-1985) Cap 127, on 25th November, 2017 at the St. Francis Xavier Catholic Church, Kotobabi, Accra. Thereafter, the parties cohabited at Maamobi in Accra and subsequently, the petitioner left the matrimonial home to live with her mother at Apollonia, Ashaiman. The marriage is blessed with one child namely, Prince Cecil Kwabena Baah, aged 3 years at the time of filing the instant petition for divorce. There has been a previous proceeding at the Family and Juvenile Court, Ministries Accra, regarding custody and maintenance of the issue of the marriage. The petitioner, alleging that their marriage has irreparably broken down filed the instant petition for divorce in the Registry of this court on 24th April, 2023, praying this court for the following reliefs; a. Dissolution of the ordinance marriage celebrated between the parties. b. Custody of the issue of the marriage to be given to the petitioner with reasonable access to the respondent whilst respondent is compelled to maintain the issue of the marriage including but not limited to the payment of 1 school fees and medical bills as and when it falls due. c. Lump sum financial settlement of Twenty Thousand Ghana Cedis (GH₵20,000). The respondent entered appearance and filed an answer and cross-petitioned for the following reliefs; (a) An order for the dissolution of the marriage with the petitioner. (b) An order that custody of the child be granted to the petitioner with reasonable access to the respondent and a further order for the child to spend weekends with the respondent The petitioner asserts that the respondent has behaved in such a way that she cannot reasonably be expected to live with him as husband and wife. The petitioner avers that before the marriage, when she decided not to marry the respondent again since the respondent used to return home late after work, the respondent held her neck and threatened her that if he does not marry her then no one will. When her family members advised her to report him to the police, the respondent’s family and church members apologised and impressed upon her to marry the respondent. After the celebration of the marriage, the conduct of the respondent in returning home late persisted. When she confronted the respondent about his conduct, he ceased communication with her and refused to eat food prepared by her. Additionally, the petitioner states that the respondent consistently hurled insults at her and put her through emotional stress by refusing to have sexual intimacies with her. When she became pregnant, the respondent failed to have sex with her until she delivered the issue of the marriage. When her mother came to assist care for the child whilst recuperating from childbirth, the respondent subjected her mother to verbal abuse to the extent of calling her mother a prostitute and a witch. 2 The respondent also threatened to assault her when she complained about his staying out late after work. Once, the respondent slapped her and she sustained injuries on her face with blood oozing out of her face which visited the hospital. This caused her to leave the matrimonial home in the year 2019 to live with her mother at Ashaiman, after a failed attempt made by their families to reconcile them. Consequently, since then, they have not lived together as husband and wife and in the year 2020, the customary marriage contracted between them was dissolved by their families. The petitioner further avers that when she left the matrimonial home, the respondent failed to maintain the child of the marriage which caused her to file a suit against him at the Family and Juvenile Court, Ministries, Accra. The Family and Juvenile Court granted her custody of the child and ordered the respondent to maintain the issue of the marriage including but not limited to the payment of school fees and medical bills. The petitioner states that several attempts made to reconcile their differences have proved futile and that the respondent has caused her a lot of pain, anxiety, stress and psychological trauma such that she cannot reasonably be expected to live with him. The respondent is agreeable that the marriage has broken down beyond reconciliation but blames the petitioner for their inability to live together as husband and wife for more than two years preceding the presentation of the petition for divorce. The respondent states that in the year 2019, the petitioner left the matrimonial home to live with her mother at Zenu, Ashaiman for months without notifying him of her whereabouts. When he went in search of the petitioner to enquire about her reasons for leaving the matrimonial, she did not proffer any tangible reason. He then pleaded with the petitioner to return to the matrimonial home with him, but she refused. Subsequent to that, he went back with his family to the petitioner for about five times to plead with the petitioner 3 to return to the matrimonial home but she refused to return. Later, the petitioner sent him a message to inform him that she was no longer interested in the marriage and asked him to petition the court for the dissolution of the marriage. The respondent alleges that the petitioner was on a mission to destroy his life knowing that she did not love him but agreed to marry him. According to him, he sponsored the education of the petitioner from the secondary level through to tertiary level and bore all her educational expenses but the petitioner now considers them to be below her class. He further argues that as a civil engineer, his job demands that he closes late which the petitioner was aware. He denied assaulting the petitioner and his parents apologising on his behalf to the petitioner. The respondent states that she sees the allegation against him as a ploy by the petitioner to leave him to marry another man after sponsoring her education. Again, the petitioner states that when the petitioner was pregnant, he was cooking and serving her until she delivered. Also, at a point when he lost his job, he was still assisting the petitioner. He further denies that he verbally abused the petitioner’s mother and states that the petitioner’s mother came to live with them for over six months before returning to her matrimonial home. It was rather the petitioner who denied him sex hence, her decision to leave the matrimonial home. The respondent further denies that their marriage has been dissolved customarily. He states that it has been three years now since the respondent left the matrimonial home. Again, the respondent avers that the petitioner filed a suit against him at the Family and Juvenile Court alleging that he was not the biological father of the child but the DNA results proved otherwise. Based on that, the court ordered him to pay an amount of Three Hundred Ghana Cedis (GH₵3,000) every month which he has been paying till date. He denies that there has been several attempts to 4 reconcile their differences but cross-petitioned for divorce and reasonable access to the child. Based on the pleadings and the evidence, the court set down the following issues for determination LEGAL ISSUES 1. Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. 2. Whether or not the petitioner is entitled to custody of the child with reasonable access to the respondent. 3. Whether or not the petitioner is entitled to an amount of GH₵20,000 as financial provision from the respondent. BURDEN OF PROOF It is trite learning that a party who asserts must prove that which he asserts on a balance of probabilities. In the case of Bank of West Africa Ltd. V. Ackun [1963] 1GLR 176, the Court held in its holding 2 that: “the onus of proof in civil cases depended on the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof.” In the case of Adwubeng v. Domfeh [1996-1997] SCGLR 660 the court stated that “in assessing the balance of probabilities, all the evidence be it that of the plaintiff and that of the defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable than the rival version and is deserving of a favourable verdict. Therefore, both the petitioner and the respondent bear the burden to prove the allegations contained in the petition and the cross-petition for divorce on a preponderance of probabilities. 5 ISSUE 1: Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. Section 1 of the Matrimonial Causes Act, 1971 (Act 367), provides that the sole ground for granting a petition for divorce in Ghana is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to establish at least one of the (6) facts set out in section 2(1) of Act 367, i.e., adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as husband and wife for five years and irreconcilable differences. Further to that, a court hearing a petition for divorce is enjoined to enquire into the facts alleged by the parties to establish the breakdown of the marriage. Additionally, a court shall refuse to grant a divorce petition where the circumstances disclose a reasonable possibility for reconciliation. In that regard, section 8 of Act 367 charges a petitioner or his counsel to inform the court about the various efforts made to reconcile the parties and further mandates the court to adjourn proceedings for the parties to attempt settlement if there is reasonable possibility for reconciliation. In the erudite judgment of Osei-Hwere J (as he then was) in the case of Donkor v. Donkor [1982-83] GLR 1158 High Court, Accra, the Court held that: “... The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act, not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. Section 2 (3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. Equally the court was under a statutory and positive duty to inquire so far as it reasonably could, into the charges and counter charges alleged…” 6 The petitioner in the instant petition set out to prove that for at least two years immediately preceding the presentation of the petition for divorce, she and the respondent had not lived as husband and wife within the meaning and intendment of section 2(1)(d) of Act 367. Under Section 2 (1) (d) of the Matrimonial Causes Act, 1971 (Act 367), not having lived together as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition for divorce coupled with the inability of the parties to effect reconciliation is proof that the marriage has broken down beyond reconciliation. To succeed on this ground, the respondent must consent to the grant of the decree for divorce; however, consent of the respondent should not be unreasonably withheld. See the case of Addo v. Addo [1973] 2 GLR 103 at 106. In the case of R v. Creamer [1919] 1 K. B. 564 at 569 the court per Darling J. said; “In determining whether a husband and wife are living together the law has to have regard to what is called consortium of the husband and wife. A husband and wife are living together, not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined” Furthermore, the petitioner must prove that she ceased to recognise the marriage as subsisting and never intended to return to it. The respondent must consent to the dissolution of the marriage. The consent may be given in the answer to the petition or in the form of cross-petition. It may also take the form of consent to the dissolution during attempts at settlement. The petitioner testified that for more than four years preceding the presentation of the petition for divorce, they have not lived as husband and wife. The reasons necessitating the petitioner leaving the matrimonial home as testified to by her are that the respondent subjected her to emotional and physical abuse. The petitioner says that the respondent would go out and return home late, refuse to 7 eat food she prepared and stopped having sexual intercourse with her. The petitioner states that the parties by themselves have not been able to reconcile their differences. Based on the fact that the parties to the marriage have not been lived as husband and wife for five years, the marriage has broken down beyond reconciliation. There is also no correspondence between the parties which has affected the issue of the marriage. The respondent on his part testified that the marriage has broken down beyond reconciliation because the petitioner has left the matrimonial home for over four years now and he cannot reasonably be expected to live with her as husband and wife. According to the respondent, he visited the family members of the petitioner to inquire from them why the petitioner was living with them but they could not give him any tangible reason. The petitioner persistently refused to return to the matrimonial despite numerous pleas from him and the petitioner later sent him a text message that she was no longer interested in the marriage. Again, when several efforts made by his family members to reconcile their differences proved futile, they informed the petitioner's family officially with a customary drink that she was no longer under his care. The respondent contends that communication has totally broken down because the petitioner blocked him from calling her phone number known to him. The respondent states that he financed the schooling of the petitioner from secondary level till the tertiary level. According to the respondent, from certain facts gathered in her petition, the petitioner did not want to marry him but did so because of the financial benefits she was receiving from him. Additionally, the respondent states that the petitioner did not even stay in the marriage for a year before leaving the marriage with all the wedding gifts they received estimated at GH₵55,000.00. At all material times, the petitioner knew the nature of his work and it is surprising that she is complaining. The respondent states that he has been nothing but a responsible husband a responsible husband 8 and father to his family and at a point of serving the petitioner, that the petitioner thanked God for giving her a husband like him. The respondent again states that after the birth of their son, the petitioner consistently refused to have sexual intercourse with him until she left the matrimonial home. The respondent states that there has been constructive desertion on the part of the petitioner since the parties have lived their separate lives ever since she let the matrimonial home. Also, various attempts made by pastors and marriage counsellors of her church to reconcile their differences have proved futile and that the marriage has broken down beyond reconciliation. The evidence led by the parties show that for more than four years preceding the presentation of the petition for divorce, the parties had not lived as husband and wife for a continuous period of at least four years. The petitioner states that her reasons for leaving the matrimonial home were as a result of the physical and emotional abuse the respondent subjected her to but tendered no evidence to prove same. The respondent in his answer to the petition consents to the dissolution of the marriage since various attempts made by him and well-meaning family and friends have proved futile. In the circumstances, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I therefore grant the petition for divorce and decree for the dissolution of the marriage celebrated between the parties. ISSUE 2: Whether or not the petitioner is entitled to custody of the child with reasonable access to the respondent. The petitioner prays the court for custody of the only issue of the marriage with reasonable access to the respondent. The respondent does not contest custody but maintains that when the petitioner left the matrimonial home, she left with the 9 only child of the marriage and later sued him at the Family and Juvenile Court that he was not the biological father of the child. However, DNA test ordered by the court proved that he was indeed the father of the child. In view of the fact that there is a subsisting custody order made by a court of competent jurisdiction, I will maintain the orders made by the Family and Juvenile Court in respect of the child in issue. There is also an award of maintenance in respect of the child and the respondent states that he has religiously complied with the orders of the Family and Juvenile Court. Once a court of competent jurisdiction has made orders, it will be an exercise in futility to make the same orders concerning the child. If in the opinion of the petitioner, the respondent has failed to comply with the orders of the court, her remedy is to go into execution and not praying for new orders when a court has finally determined the matters regarding the custody and maintenance of the child. ISSUE 3: Whether or not the petitioner is entitled to an amount of GH₵20,000 as financial provision from the respondent. Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) states that: " 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.” In the case of Berchie-Badu v. Berchie-Badu [1987-88] 2GLR 260, the court held in its holding 2 that: “However, when the High Court assumed its divorce jurisdiction, it was under the provisions of section 20 of the Matrimonial Causes Act, 1971 (Act 367) armed with sufficient powers to make provision for the wife on the breakdown of the marriage. In the exercise of the court’s discretion to award ancillary relief under 10 that section, the overriding consideration was that the order had to be “just and equitable.” The factors to consider in determining what is “just and equitable” are stated in the case of Kingsley Offei-Nkansah v. Marina Offei-Nkansah [21/10/2011] Suit No. BDMC 226/2010, the High Court presided over by Justice Patrick Baayeh are as follows: “In awarding a lump sum payment on the dissolution of a marriage the Court ought to take all the circumstances into consideration. The Court must look at the standard of living of the parties. Consideration must also be given to the welfare of any child (if any) who has not attained the age of 18 years. The Court should also take into account the duration of the marriage, the income earning capacities of the parties, their property and financial resources for the future, their obligations, the standard of living of the parties before the breakdown of the marriage etc.” Here, the petitioner claims an amount of GH₵20,000 as lump financial provision from the respondent. The petitioner did not lead evidence on her source of income but under cross-examination by the respondent, she admitted that she took the monetary gift received during wedding because the respondent asked her to use the money to maintain the home and the child since at the time he was not working. The petitioner also states that she is entitled to financial provision from the respondent because they dated for nine years before the marriage and that during the marriage, the respondent subjected her to all forms of abuses and took videos of it and indication that the respondent intended to torture her. The petitioner failed to tender the said video of the abuse and torture the respondent allegedly subjected her to. There is also no evidence apart from her verbal assertions that the respondent physically and emotionally abused her. 11 Again, the parties did not lead evidence on their earning capacities but from the evidence, the petitioner is a caterer and the respondent is a civil engineer. The parties cohabited for barely one year before the petitioner left the matrimonial home to her mother’s house citing abuses as the reason but failed to substantiate same. There is only one child to the marriage which the parties are legally liable to maintain and there is a subsisting maintenance order by a court in respect of this child. At the time of the marriage in the year 2017, the petitioner was thirty- two (32) years and the respondent was forty-six 46 years old. The parties are relatively young and the possibility of the parties finding love and remarrying after the dissolution of this marriage is high. In the circumstances of this case, I do not find it just and equitable to award an amount of Twenty Thousand Cedis as financial provision in favour of the respondent. I make no order as to financial provision. CONCLUSION To conclude, I hold that the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I therefore grant the petitioner and the cross-petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent on 25th November, 2017 at the St. Francis Xavier Catholic Church, Kotobabi, Accra. 2. The Registrar shall cancel the original copy of the marriage certificate issued in respect of this marriage to the parties. 3. There is a subsisting custody and maintenance order made by the Family and Juvenile Court, Accra and I therefore make no further orders regarding same. 12 4. The claim for financial provision is dismissed. 5. No order as to costs. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 13