GYARTENG VRS MENSAH (AR/AO/DC2/C5/105/22; AR/AO/DC2/C5/105/22) [2023] GHADC 763 (16 November 2023)

IN TE DISTRICT COURT HELD AT ASOKWA- KUMASI ON THURSDAY 16TH NOVEMBER, 2023, BEFORE HIS WORSHIP JOSEPH YENNUBAN KUNSONG, ESQ, MAGISTRATE. SUIT NO: AR/AO/DC2/C5/105/22 Commented [A1]: NICY GYARTENG -------------------------------------------------------------------PETITIONER PLOT NO. 26 BUOKROM, TRUBA-KUMASI VRS PIOUS OPOKU MENSAH --------------------------------------------------------RESPONDENT PLOT BH 48, ASAFO-KUMASI PETITIONER -PRESENT RESPONDENT - PRESENT ABENA AFRIYIE ADEI, ESQ FOR PETITIONER -PRESENT J-U-D-G-M-E-N-T JUDGMENT: Petitioner and Respondent got married traditionally and converted same to ordinance marriage under the MARRIAGES ACT, 1884-1985 (CAP 127) on 18th October, 2015 at Grace Baptist Church, Amakom-Kumasi. After the marriage, Petitioner and Respondent co-habited at Kumasi. The marriage is blessed with one child namely Nana Yaw Awuah, five (5) years. There have been no proceedings in any court regarding the marriage. Petitioner lived happily with the Respondent until about three years ago when misunderstanding ensued and the Petitioner left the matrimonial home and now resides with her parents. Following the unreasonable behavior by the parties, both families, Pastors and Church elders made several attempts with the view to resolving their differences but all efforts proved futile. The Petitioner therefore filed the instant suit for the dissolution of the marriage on grounds that the Respondent has behaved unreasonably and has deserted her and the only child, returned the items used during the celebration of the marriage as well as the rings used during their wedding. Respondent also alleged that the petitioner has behaved unreasonably and has deserted him. That the Petitioner informed her that she was no longer interested in the marriage and as result terminated over seven pregnancies causing pain and anxiety to the Respondent and that petitioner has returned the items used during their marriage. Respondent also sought for the dissolution of the ordinance marriage celebrated on 18th October, 2015 on grounds that the marriage has broken down beyond reconciliation. CASE FOR THE PETITIONER. The Petitioner told Court that she is a trader and the Respondent, an electrician. According to the Petitioner, she got married to Respondent under the MARRIAGES ACT, 1884-1985 (CAP 127) on 18th October, 2015 at Grace Baptist Church, Amakom- Kumasi in the Asanti Region. After the marriage, the parties co-habited at Kumasi. Petitioner and respondent has one child by name Nana yaw Awuah. There are no proceedings in any court in relation to the marriage. According to Petitioner, the marriage was thriving well until few years into the marriage when Respondent started exhibiting certain unreasonable behaviors uncharacteristic of a man and woman. Petitioner further stated that the marriage has broken down beyond reconciliation and all efforts made by both families, Pastors and Church elders to resolve their differences have been unsuccessful as Respondent has deserted the matrimonial home since three years ago. Petitioner continued her evidence that some of the unreasonable behaviors shown by the Respondent include; 1. Being Violent and aggressive, 2. Verbally abusive and disrespectful, 3. Unnecessary quarrels and assault without any provocation, 4. Public radicle, 5. Refusal to have intimacy-sex, 6. Refusal to maintain Petitioner and the child of the marriage, 7. Lack of interest in the marriage by respondent and desertion by the Respondent. Petitioner intimated that she cannot be expected to live with the respondent and that respondent’s behavior has caused her pain and anxiety. Petitioner concludes her testimony to the court and stated that custody of the only child by granted her due to his young age. She tendered the marriage certificate mark as EXHIBIT NG A to support her claims and invited the Court to dissolve the marriage contracted between the parties on 18th October, 2015 specifically praying for the following reliefs: 1. That the marriage between the parties be dissolved. 2. That the petitioner be granted custody of the only child of the marriage. 3. That the Respondent be ordered to make to the petitioner and the child such maintenance pending suit and thereafter such periodic payments as may be just to cater for the young child, his welfare and education. 4. That in the alternative the Respondent be ordered to pay to Petitioner a lump sum of ten thousand Ghana Cedis (GHC 10,000.00). CASE FOR THE RESPONDENT. The Respondent in his testimony aver that he is an electrician and on 18th October, 2015 get married the petitioner at custom and converted same to ordinance marriage under the MARRIAGES ACT, 1884-1985 (CAP 127). Respondent stated that the marriage is blessed with a child by name Nana yaw Awuah aged five (5) years. According to the Respondent, just two weeks into the marriage, the Petitioner became inflexible and making life extremely difficult for him to cope with the marriage due to the petitioner’s unreasonable behavior. The Respondent further told this court that some of the unreasonable behaviors exhibited by Petitioner include; 1. Refusal to attend to laundry, 2. Petitioner’s refusal to desist from charting with her ex-fiace, unnecessary interference in the marriage and insults from mother in-law due to misinformation given by the petitioner, refusal to give birth and resorting to termination of over seven pregnancies, refusal to acquire property jointly, refusal to have sex, quick temper and lack of communication, disrespect and desertion. Respondent concludes his testimony that the Petitioner has returned the drinks and rings used during the customary and ordinance marriage. Respondent concluded his evidence that the court should grant the petition and grant custody of the child to the Petitioner with reasonable access given to respondent and that the marriage has broken down beyond reconciliation. ISSUES 1. Whether or not PETITIONER’S departure from the matrimonial home constitute desertion 2. Whether or not the marriage has broken down beyond reconciliation due to unreasonable behavoiur of the respondent. APPLICABLE LAWS. This being a civil suit, the standard of proof required of the party who makes assertions which are denied, is one on the balance of probabilities. This therefore requires a party making assertions to produce 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 introduced 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. (5) 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 stated 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. Parties have agreed to the following terms of settlement detailed as follows: - a) both parties have agreed to the dissolution of the Ordinance marriage. b) Petitioner should take custody of the issue of the marriage with reasonable access to the Respondent. c) Respondent is to maintain the issue including feeding, school fees and health needs, electricity and accommodation when the need arises at a total cost of GHC 900.00 d) Petitioner is not demanding any financial settlement from the Respondent. Before the court examine the evidence adduced at the trial, it is important to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367). 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 the Act 367, Sarkodie J. held in 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. ANAYSIS OF THE EVIDENCE AND THE LAW ISSUE 1 WHETHER OR NOT RESPONDENT’S DEPARTURE FROM THE MATRIMONIAL HOME CONSTITUTES DESERTION. In discussing this issue, the court will take into account the circumstance leading to the Respondent’ departure from the matrimonial home. The petitioner said the Respondent left the petitioner and the only child and has since brought co- habitation to an end. The petitioner in supporting her claim relied on the fact that Respondent has blacklisted her mobile number and has refused to take any calls placed by the Petitioner and that this has caused her great pain and anxiety. It is in the evidence in chief of the Petitioner that the parties have not lived as a husband and wife for the past three (3) years since Respondent left the matrimonial home. The Respondent has not denied this during the trial. Desertion constitute one of the grounds on which the court can rely on and grant a divorce. Desertion is not a withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state. The state of things may be termed for short ‘the home’. 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; (2) (1) (c) that the parties to the marriage have not lived as man and wife for a continuous period of at least two(2) years immediately preceding the presentation of the petition. Desertin may result from a physical withdrawal from a place or a withdrawal from a state of things. The withdrawal must amount to a total repudiation of marital obligations, Naylor v Naylor [1961] 2 All. ER 129. The separation must be continuous for a period of at least two years and must exist at the time that the petition is field. If separation has ended at the time of the presentation of the petition, the petition will fail. For desertion to succeed the following elements must be established: Defacto separation, Animus deserendi, luck of consent from the other spouse and want of reasonable excuse. In Hopes v Hopes [1948] 2 All ER 920, the court held that there was insufficient separation of the house hold for there to be desertion. Also, in Bull v Bull [1953] 2 All ER 601 the court held that there was no desertion. The Petitioner has stated in her evidence in chief that Respondent left the matrimonial home about three years and has not returned. There is a clear intention on the part of Respondent to bring co-habitation to an end. In the instant case, the respondents left the matrimonial home and never return to the home and has also cut off all responsibilities with petitioner and the child. Respondent has indicated that it was rather the Petitioner who deserted but did not deny that he was actually in desertion. There is no intention of returning and it is three years now. During cross examination of the petitioner, the respondent declined to ask the petitioner questions to controvert what she said. This was what transpired between Petitioner and the Respondent. CROSS EXAMINATION OF THE PETITIONER BY THE RESPONDENT Respondent: I have no question for the Petitioner. In BARTHOLOMEW V. BARTHOLOMEW [1952] 2 ALL E. R. 1035 C. A the husband left the matrimonial home. It was held that the husband was in desertion. The respondent gave evidence that the petitioner left the Respondent and nothing is going on between the couples. That, the Petitioner has since returned the items used during the marriage and was no longer interested in the marriage. During the trail, the petitioner also failed to cross examine Respondent on the issue of desertion, a clear indication that petitioner had nothing to say contrary to what the Respondent said. Parties gave evidence that they have not been able to resolve their differences in spite of all the efforts made by both families. With the instant case, the parties have not lived as husband and wife for over three (3) years. On the strengths of the various statutes and decided cases, the court thinks that by virtue of the three (3) years separation and failure to reconcile the differences, one can only draw conclusion that the marriage has broken down beyond reconciliation by virtue of the three (3) years of matrimonial collapse. In the opinion of this court, Petitioner is entitled to her relief. ISSUE 2 1. Whether or not the marriage has broken down beyond reconciliation due to unreasonable behavior. Section 2(1) (b) (f) of the Matrimonial Causes Act, 1971 (Act 367), 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. In the instant matter, the Petitioner has told the court during trial that the marriage between the parties has broken down beyond reconciliation and therefore cannot reasonably be expected to live with the Respondent. See the case of ANDREW V ANDREW [1974 3 ALL ER 643. The Petitioner said that the Respondent has engaged in unreasonable behavior as follows: Respondent does not respect Petitioner and her family, being violent and aggressive towards petitioner, being unnecessarily quarrelsome, being verbally abusive, refusal to engage in sexual intimacy, failure to maintain petitioner and the child, lack of communications and black listing of the petitioner. The petitioner further asserted that the Respondent has deserted the matrimonial home for three years (3) without the intention of coming back home. Respondent did not deny this during the trial. All these constitute unreasonable behavior that one could rely on to seek divorce. Respondent also says Petitioner returned the items used during the celebration of the marriage to signify the dissolution of the customary marriage and has even deserted the matrimonial home for three (3) years now. To further prove his case for unreasonable behavior by the Petitioner, Respondent states that Petitioner has not lived with him and she is not in any intimate relationship with Petitioner who now lives alone. Petitioner gave evidence that all attempts by the families of the parties, Pastors and elders of the church to reconcile their differences has been unsuccessful. Based on these developments, the court will not hesitate to hold that the marriage between the parties has broken down beyond reconciliation. Similarly, on record, Respondent has testified that the Couple were happily married but just two weeks into the marriage the Petitioner started putting up strange behaviors such as refusal to perform laundry, refusal to have sexual intimacy with Respondent. Respondent asserted that petitioner’s unreasonable behavior has made life extremely uncomfortable. Respondent, further stated that Petitioner does not want to take any advice from him to cut communication links with her ex-boyfriend. Respondent finds these unreasonable behaviors which creates acrimony between the parties further leading to conflicts within the marriage and therefore does not oppose to the legal resolution of the marriage and any subsequent orders by the Honorable Court. The evidence on record shows that the Petitioner and the Respondent have not lived as husband and wife for over three (3) years now due to desertion and unreasonable behavior. In the circumstances, the court shall rely on SECTION 2(1) OF THE MATRIMONIAL CAUSES ACT, 1971 as well as the case of Andrew v Andrew supra and grant dissolution of the marriage. 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) 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, see ANDREW V ANDREW supra. Parties relied on their witness statements filed in court as their evidence-in- chief. Respondent did not cross examine Petitioner during proceedings; he declined to do so. CROSS EXAMINATION OF THE PETITIONER BY THE RESPONDENT Respondent: I have no question for the Petitioner. BY COURT: End of cross –examination of the Petitioner by Respondent. Witness is discharged. Petitioner did agree with the Respondent that the marriage has broken and that the marriage should be dissolved. In line with her witness statement, Petitioner admitted the averments made by the Respondent. All that Petitioner said was that she wanted the marriage dissolved. During cross examination, the following ensued; CROSS EXAMINATION OF THE RESPONDENT BY THE PETITIONER Counsel for Petitioner Q, you would agree with me that the marriage between you and your wife has broken down beyond reconciliation. A. Yes. Q: You would agree with me that the marriage between you and the petitioner be dissolve by the Court? A: Yes. Q: you will also agree with me that you and the Petitioner have settled the ancillary reliefs and have filed terms of settlement? A: Yes. The Petitioner made his case against the Respondent and was able to discredit the case of the Respondent by proving Petitioners case on the balance of probabilities. It is clear from the cross examination of the Respondent that both parties have consented to the divorce following the incidents of desertion and unreasonable behaviors which all constitute grounds for granting divorce petition. In any case, the parties are not against divorce. Both have already agreed to go their separate ways as both parties have lived without the other for the past three (3) years further strengthening the fact that the marriage has broken down beyond reconciliation 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. In that instance, 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” Petitioner is therefore bound to establish how Respondent’s behavior affects the marriage as a result of which he cannot reasonably be expected to live with Respondent as a result of the bad behavior. 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. Again, in the instant suit, Petitioner stated under oath that the parties have been married since 18th October, 2015. Petitioner’s plaint with the Respondent with regards to her unreasonable behavior was his withdrawal from sex and the matrimonial home as well as how Respondent has failed to maintain the petitioner and the Child living Petitioner in an emotional state. The Respondent failed to cross examine on all these allegations which amounts to an admission. 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 he tendered as his 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 her. Both the Petitioner and Respondent admitted in their evidences on oath that the parties have not lived as husband and wife for the past three (3) years. The parties have agreed to the dissolution on grounds of unreasonable behavior and desertion. 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 by both families, elders and Pastors of the Church 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. 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 families 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 children of the marriage is granted to petitioner with reasonable access to Respondent 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 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 Petitioner with reasonable access to the Respondent 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 his tender age if custody is granted to Petitioner. Custody of the issue of the marriage; NANA YAW AWUAH is hereby granted to Petitioner. Respondent is granted such access as necessary for the child to bond with Respondent. 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 child. CONCLUSION Drawing the curtain on 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. Accordingly, judgment is granted that the ordinance marriage (CAP 127) contracted between the parties herein on 18th October, 2015 at the GRACE BAPTIST CHURCH, AMAKOM- Kumasi is hereby dissolved. The marriage certificate with registration number NCRKM 1256576 dated 18th October, 2015 (EXHIBIT NG A) is hereby cancelled. Divorce Decree granted. The Court makes order that custody of the child is granted the Petitioner with such reasonable access to the Respondent. No orders made as to cost. …………………………………………………………… H/W JOSEPH YENNUBAN KUNSONG, ESQ MAGISTRATE DISTRICT COURT 2, ASOKWA 16th OCTOBER, 2023. 18