BOAME VRS ADOMAKO (AR/AO/DC2/C5/51/23) [2023] GHADC 761 (9 November 2023)

IN THE DISTRICT COURT HELD AT ASOKWA- KUMASI ON THURSDAY 9TH NOVEMBER, 2023, BEFORE HIS WORSHIP JOSEPH YENNUBAN KUNSONG, ESQ, MAGISTRATE. SUIT NO: AR/AO/DC2/C5/51/23 DENNIS BOAME - PETITIONER OF AT-1057-1289 APOTUGYAI-KUMASI VRS COMFORT ADOMAKO - RESPONDENT OF AT-1057-1289 APOTUGYAI-KUMASI PETITIONER - PRESENT RESPONDENT - ABSENT MAXWELL TETTEH, ESQ FOR THE PETITONER - ABSENT DORCAS OTI BOATENG, ESQ THE RESPONDENT - ABSENT J-U-D-G-M-E-N-T INTRODUCTION: Petitioner and Respondent got married at ordinance on 20th March, 2017 at the Kumasi Metropolitan Assembly, Kumasi. The couple is blessed with one child by name DENNISA ELORM BOAME aged five (5) years. The Petitioner brought this instant suit against Respondent stating that he cannot be expected to live with the Respondent due to unreasonable behavior. According to the Petitioner, the marriage has broken down beyond reconciliation and that both families of the parties, Pastors and friends made all efforts to settle their differences but were unsuccessful. The Petitioner contend that the Respondent has caused him much anxiety due to her acts unreasonable behavior. Some of the unreasonable behavior the Respondent is said to be involved in are; gross disrespect, uncontrollable nagging, very abusive, lack of maintenance of the home and non-performance of house chores, association with bad friends and Respondents own willingness to bring the marriage to an end. Respondent denied all the unreasonable behaviors mentioned by the Petitioner adding that these are flimsy excuses the Petitioner has employed to convince this court to dissolve the marriage. Respondent contend that she has been a good wife to the Petitioner and Petitioner can attest to the fact that she has been a good mother to their child as well. Respondent indicated that she loves the Petitioner very much and would not like to divorce him except that the court deemed it fit to dissolve the marriage. After close of pleadings, the parties settled the ancillary matters relating to the suit and filed terms of settlement to that effect. Both parties are not against the dissolution of the marriage and have agreed that this Honorable court should dissolve the marriage. The parties among others agreed that custody of their only child should be given to the Respondent with reasonable access granted to the Petitioner during school vacations, weekends and holidays. Based on the settlement of the ancillary reliefs, on 16/02/2023, the court ordered the parties to file their respective witness statements to enable the Court take evidence from both Petitioner and the Respondent which they complied. THE CASE FOR THE PETITIONER The Petitioner is a salesman and the Respondent, a Trader. The Petitioner and Respondent got married through Ordinance Marriage (CAP 127) on 20th March, 2017 at the Metropolitan Assembly, Kumasi in the Asanti Region. After the marriage, the parties co-habited at Gyinase and Apotagya, Kumasi. Petitioner and Respondent has one child by name Dennisa Elorm Boame aged five (5) years. There are no proceedings in any court in relation to the marriage according to the Petitioner. According to the Petitioner, the marriage was thriving well until recent times when Respondent started exhibiting certain unreasonable behaviors uncharacteristic of a wife and mother. Petitioner further stated that this situation has caused him much anxiety and distress and that the Petitioner finds it difficult to live with the Respondent. The Petitioner stated further in his evidence the unreasonable behaviors of the Respondent as follows; a) the Respondent is grossly disrespectful, b) the Respondent nags uncontrollably, c) the respondent is very abusive, d) the Respondent does not maintain the home and does not perform general house hold chores, e) the Respondent has informed the family of Petitioner that she wants to quit the marriage and f) the Respondent has friends she associate with who give her ill advise resulting in the unreasonable behavior of the Respondent. Petitioner intimated that all attempts made by the families of both parties, Pastors and friends to reconcile their differences have yielded no positive results. Petitioner continued with his evidence that by reason of the unreasonable behavior of Respondent, Petitioner cannot reasonably be expected to live with the Respondent. Petitioner concluded that the marriage between the Petitioner and the Respondent has broken down beyond reconciliation and therefore wants the marriage celebrated between the parties on 20th March, 2017 dissolved, hence, the various reliefs sought for the dissolution. CASE FOR THE RESPONDENT. The Respondent aver that she is a trader and got married to the Petitioner on 20th March, 2017 under the Ordinance marriage (CAP 127) at the Metropolitan Assembly, Kumasi. Respondent stated that their marriage was blissful and they are blessed with a child who is five (5) years old. According to the Respondent, she loves the Petitioner so much but for reasons best known to the Petitioner, he has decided to end the marriage. Respondent stated further that, both families, elders, friends and Pastors have made several attempts to convince Petitioner from carrying out his plan to divorce Respondent but all efforts proved futile. It is also the case of the Respondent that all the allegations enumerated by the Petitioner as unreasonable behaviors are flimsy excuses the petitioner is employing to carry out with his intention to dissolve the marriage. Respondent denied ever being grossly disrespectful, nags uncontrollably and abusive to the Petitioner and does not maintain the home. Respondent further denied the claims by the Petitioner that Respondent has expressed her desire to quit the marriage and that Respondent has bad associates who usually give Respondent ill advice to misbehave towards Petitioner. Respondent intimated that the Petitioner is very much aware that Respondent is a good wife to Petitioner and a good mother to their only child. Respondent concluded her evidence and stated that she loves the Petitioner and would not like to divorce the Petitioner except the courts finds it fit to dissolve the marriage. ISSUES 1. Whether or not the marriage celebrated on 20th March, 2017 between the Petitioner and Respondent has broken down beyond reconciliation. APPLICABLE LAWS AND AUTHORITIES. This being a civil suit, the standard of proof required of the party who make assertions which are denied, is one on the balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the Court is convinced, that the existence of the facts he asserts are more probable than its non-existence. Section 11(1) and (4) of the Evidence Act, 1975 (NRCD 323) provides that; Section 11- Burden of producing Evidence defined. (1) For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (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. Further, Section 12 of the Evidence Act 1975 (NRCD 323) provides as follows: Section 12-Proof by a preponderance of the probabilities. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. (2) “Preponderance of 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. In reference to this principle of law, Adwubeng v Domfeh [1996-97] SCGLR 660 held that the standard of proof in all civil cases is proof by preponderance of probabilities. The principle was also applied in the case of Yorkwa v Duah [1992- 93] GBR 281. Further, in the case of Dzaisu and others v Ghana Breweries Limited [2007-2008] 1 SCGLR 539 at 545, the Supreme Court per Adinyira stated as follows: “It is a basic principle in law of evidence that the burden of persuasion on proving of facts essential to any claim lies on whoever is making the claim. sections of the Matrimonial Causes Act, 1971 (Act 367) relating to this suit; Section 1(2), 2(1)(a) (b)(c) (d) (e) (f) and (3) of Act 367 provides as follows; 1(2) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2 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; 1(a)that the respondent has committed adultery and that by reason of such adultery the Petitioner finds it intolerable to live with the Respondent. (b) That the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (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 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. (3) Notwithstanding that the Court finds the existence of one or more of the facts specified in the 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. Citing the dictum of Bagnall J. in Ash v Ash [1972] 1 All E. R. 582 at page 585, in respect of section 2(3) of Act 367, Sarkodie J. held as follows: On a proper construction of section 2(3) of the Act 367, the court could still refuse to grant a decree even where one or more of the facts set out in section 2(1) had been established. It was therefore incumbent upon the court hearing a divorce petition to carefully consider all the evidence before it, for a mere assertion by one of the parties that the marriage had broken down beyond reconciliation would not be enough to grant a divorce. Parties have agreed to the following terms of settlement which have been adopted by this honorable court: - a) Respondent should take custody of the issue of the marriage with reasonable access granted the Petitioner during school vacations, weekends and holidays. b) Petitioner is to maintain the child including feeding, school fees and health needs when the need arises. c) Respondent is not demanding any financial settlement from the Petitioner. d) The parties shall take steps to create a trust in the property located at AT-1057- 1289, Apotugya, Kumasi with the Petitioner being the trustee, for the benefit of the minor. e) Either party shall seek the consent of the other party if he/she intends to travel outside Kumasi or outside the Country whiles he or she has the child. f) The Petitioner shall handover the vehicle described as Black Toyota Corolla with Registration number AS 7829-22 to the Respondent. g) The Petitioner shall take steps to renew the tenancy agreement of the shop currently being used by the Respondent. ANAYSIS OF THE EVIDENCE AND LAW The sole ground for the granting of a petition for divorce in this jurisdiction, shall be that the marriage has broken down beyond reconciliation. This is provided for in Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367). The facts required to prove that the marriage has broken down beyond reconciliation are set out in Section 2(1) (a) of the Matrimonial Causes Act, 1971 (Act 367) (supra). In the instant case, the Petitioner has stated that the Respondent behaved unreasonably towards him. The Petitioner therefore has to adduce evidence regarding elements that constitute unreasonable behavior so as to convince this court that indeed the marriage has broken down beyond reconciliation. Proof of breakdown of Marriage; 2(1) for the purposes of showing that the marriage has broken down beyond reconciliation, Petitioner shall satisfy the Court with the following facts; (b) That Respondent has behaved in such a way that Petitioner cannot reasonably be expected to live with Respondent. As has indicated supra, both Petitioner and Respondent have settled issues regarding the ancillary reliefs and have filed terms of settlement. On a petition for divorce, the court ought to inquire so far as is reasonable, into the facts alleged by the Petitioner and Respondent to satisfy itself on all the evidence that the marriage between the parties has indeed broken down beyond reconciliation as a result of unreasonable behavoir. Section 2(2) and (3) of Matrimonial Causes Act, 1971 (Act 367) provides as follows: (2) On a petition for divorce it shall be the duty of the Court to enquire, so far as is reasonable, into the facts alleged by Petitioner and Respondent. (3) Notwithstanding that the Court finds the existence of one or more of the facts specified in sub-section (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. The Petitioner has alleged that the Respondent has been grossly disrespectful, nags uncontrollably, very abusive in words, lack of maintenance of the home and association with bad friends which impact negatively on the behavior of the Respondent. By virtue of section 2(1) (a) (b) (f) of the Matrimonial Causes Act, 1971 (Act 367), where it is established that the behavior of either party is such that, the other cannot reasonably be expected to live with him or her, the Court may proceed to dissolve the marriage. Respondent did deny the various claims of unreasonable behavior made by the Petitioner, however, Respondent failed to cross examine the Petitioner on his claims. The following transpired when the Respondent was given the opportunity to cross examine Petitioner; CROSS EXAMINATION OF THE PETITIONER BY COUNSEL FOR THE RESPONDENT. Counsel for the Respondent: There will be no cross examination. This implies that the evidence of the Petitioner was unchallenged or uncontroverted. In Quagraine v Adams [1981] GLR 599, CA, the court held that “where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross- examine”. In the instant case, Respondent declined to cross examine the Petitioner. With this, Respondent would be deemed to have admitted what the Petitioner said. What amounts to unreasonable behavior, has been held to depend on the circumstances of each case. It must not be conduct which can be termed as trivial, such conduct as is occasioned by the wear and tear of marriage. The conduct must be grave and weighty, such as to merit a finding that Petitioner cannot be reasonably expected to live with Respondent. In Mensah v Mensah [1972]2 GLR 198, Hayfron Benjamin held that: “in determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all the circumstances constituting such behavior including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivial will not suffice” Similarly, Respondent stated that the various instances of unreasonable behavoir alleged by the Petitioner are tactics or flimsy excuses employed by the Petitioner to carry out an intention to end the marriage. Respondent further told the Court that she loves the Petitioner and would not want to divorce the Petitioner. Respondent added in her testimony that Petitioner can attest to the fact that Respondent is a good wife and a good mother to their only child. The Petitioner did not also cross examine Respondent on her evidence. Counsel for the Petitioner only said “there will be no cross examination of the Respondent. Again, this boils down to the fact that the Petitioner accepts what the Respondent gave in her evidence. See the case of Quagraine v Adams (supra) which is applicable. The principle of Law governing the determination of matrimonial matters is that such matters must be considered in accordance with law and not any sentimental attachment. This principle was applied in the case of Obeng vs Obeng (J4/37/2015) [2015] Unreported SC, (9th December, 2015) Akamba, JSC: Matrimonial matters are fraught with all manner of sentiments on the part of the parties but at the end of the trial it is for the trial Judge to exercise his/her discretion in accordance with the law. As the constitution clearly states in article 296 of the 1992 of Ghana, every discretion vested in any person or authority requires that the person or authority and in this case the trial judge shall be fair and candid; that the power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with the process of the law. In the instant case, both parties have told the court what their positions are and each party failed to cross examine the other party. The court will not end at that but will go into the merits of each case to determine if indeed the marriage has broken down beyond reconciliation. Both parties are not against divorce if the court finds it fit to do so. The court gathered from the evidence of the parties that there are a lot of unresolved issues with the marriage and the best way to go is to end this marriage. The Parties have already filed terms of settlement which were adopted by the court. These terms of settlement will not be disturbed as any discretion by this court to decide otherwise by sentiment and not according to law. See the case of Obeng vs Obeng (supra) The evidence on record shows the Petitioner and the Respondent have not lived as husband and wife due to acrimony between the parties. The particulars of the breakdown of the marriage which both parties stated mostly relate to the conduct or behavior of the other party. By virtue of section 2(1) (b) (f) of the Matrimonial Causes Act, 1971 (Act 367), which states that, where it is established that the behavior of either party is such that, the other party cannot reasonably be expected to live with him or her, the court may proceed to dissolve the marriage. The Petitioner made his case against the Respondent and was able to prove his case on the balance of probabilities. It is clear from the Petitioner’s case that he feels distress and anxiety about the unreasonable behavior of the Respondent which was not denied in evidence. In any case, the parties are not against divorce. Both have already agreed to go their separate ways further strengthening the fact that the marriage has broken down beyond reconciliation In the case of HUGHES V HUDHES [1973]2 GLR 342, Sarkodie J. in his judgment said; “To succeed, Petitioner must show that Respondent’s conduct reached a certain degree of severity. It must be such that no reasonable person would tolerate”. In the instant suit, Petitioner has made several allegations against Respondent and those allegations have not been denied by the Respondent. Petitioner’s plaint with the Respondent with regards to her unreasonable behavior was her association with friends whose behavior has negative impact on the way Respondent treats the Petitioner leaving Petitioner in an emotional state. In the absence of any evidence to the contrary, the court is of the view that all that the Petitioner said is true and Respondent is deemed to have admitted to all his averments. The Respondent is not in any way against the dissolution of the marriage per Respondent’s evidence on oath which she tendered as her evidence-in- chief. The court is of the respectful view that Petitioner has adduced sufficient evidence to the satisfaction of the court that indeed Respondent had behaved unreasonably towards him. The parties have agreed to the dissolution on grounds of unreasonable behavior. What else can the court do except to endorse the request of the parties as both Petitioner and Respondent stated in their evidences on oath that all attempts to resolve their differences have been unsuccessful? SECTION 1(F) OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) provides that; (f) That the parties to the marriage have after diligent efforts, been unable to reconcile their differences. Petitioner already indicated that both families, elders, pastors and friends have tried to resolve the differences between the parties but have been unsuccessful. In determining whether the parties have reconcilable differences, I considered the wise words of Hayfron Benjamin J.in the case of Mensah v. Mensah (supra) where the learned Judge held; “in seeking to proof failure to reconcile differences must be distinguished from disputes. The differences must be between spouses. They must be such as to make it impossible for the marriage to subsist”. Dotse JSC in Gladys Mensah v. Stephen Mensah [2012] 1 SCGLR 391 quoted Lord Denning in his book “LANDMARKS IN THE LAW” Butterworts, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows; “There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent family abound”. The learned Supreme Court judge stated that the above quotation can only be said to be applicable to the Ghanaian society. For the foregoing observation, having enquired deeply into all the matters and with all the evidence examined, the court is extremely satisfied that the marriage between the parties has broken down beyond reconciliation. Parties have already agreed that custody of the child of the marriage is granted to Respondent with reasonable access to Petitioner. In considering the grant of custody and access, Section 2(1) of the Children’s Act, 1998 (Act 560) provides that: “The best interest of the child shall be the primary paramount consideration in a matter concerning a child”. The court has a duty to consider the best interest of the child and the importance for a young child to be with the mother. Section 6(3) (b) of The Children’s Act, 1998 [Act 560] provides that: “Every parent has rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to – (b) Provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development.” In addition to these considerations, Section 45(2) of The Children’s Act, 1998 [Act 560] requires the court to consider among others; the age of the child and also continuity of care. In the instant case, parties agreed that custody be granted to the Respondent with reasonable access to the Petitioner and the court will endorse same as it is appropriate. It is the court’s view that it would be in the best interest of this child due to her tender age if custody is granted to Respondent. Custody of the issue of the marriage; is hereby granted to Respondent. Petitioner is granted reasonable access as necessary for the child to bond with Petitioner. The court further orders that parties have the option to apply for a review of the order for custody of the children after three years if any of the parties believe that the prevailing situation is not helping the welfare of the children. CONCLUSION In conclusion, regarding this divorce petition, the court is of the considered view that the marriage between Petitioner and Respondent has broken down beyond reconciliation and therefore grant the Petition. DECISION Accordingly, judgment is granted that the ordinance marriage contracted between the parties herein on 20th March, 2017 at the Kumasi Metropolitan Assembly, Kumasi is hereby dissolved. The marriage certificate with registration number KMA 623/2017 dated 20th March, 2017 is hereby cancelled. Divorce Decree granted. The Court makes order that custody of the only child DENNISA ELORM BOAME is granted the Respondent with such reasonable access to the Petitioner. No orders made as to cost. …………………………………………………………… H/W JOSEPH YENNUBAN KUNSONG, ESQ. MAGISTRATE DISTRICT COURT 2, ASOKWA 9TH NOVEMBER, 2023. 16