ASANTE VRS DJABENG (A4/03/23) [2023] GHADC 831 (19 December 2023)

Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 IN THE DISTRICT COURT HELD AT NYINAHIN ON TUESDAY THE 19TH DAY OF DECEMBER, 2023 BEFORE HER WORSHIP VICTORIA VERA AKONU ESQ., THE DISTRICT MAGISTRATE ASANTE EMMANUEL ………… PETITIONER SUIT NO: A4/03/23 VRS. DJABENG COMFORT ………… RESPONDENT PARTIES: Petitioner present Respondent absent _____________________________________________________________________________________ _____________________________________________________________________________________ J U D G M E N T This divorce petition was filed by the Petitioner at the Registry of this Court on 2nd May, 2023 and he is seeking for the dissolution of the Ordinance marriage celebrated between him and the Respondent celebrated on 26th December, 2010. After the service of the petition on the Respondent, she filed an answer and crossed petitioned seeking for the following reliefs: (a) An order of the Court compelling the Petitioner to maintain the issue with GHS500.00 month (b) Maintenance arrears of Nineteen Thousand Five Hundred Ghana Cedis (GHS19,500.00) for the period of January, 2020 to April, 2023 that he failed to maintain the Respondent and their child and e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 (c) General damages of Twenty Thousand Ghana Cedis (GHS20,000.00) from the Petitioner for withdrawing (seeking divorce) from the marriage after having a child with the Respondent and has wasted the Respondent’s time and has reduced her market value. The Petitioner is a Carpenter and the Respondent a Cook. On 15th June, 2023, when the case was called the second time, the Respondent was present in Court when an order was made for the Parties to file their witness statement simultaneously within 14 days. The Respondent did not comply with this order and also failed to be in Court even after several Hearing Notices and Court Notes have been served on her. So guided by Order 25 rule 1 (2) of CI.59, “Where an action is called for trial and a party fails to attend, the trial magistrate may (a) where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim (b) where the Defendant attends and the Plaintiff fails to attend, dismiss the action and allow the Defendant to prove the counterclaim, if any; or make any other order that is just”, the Court proceeded without her. Trial however commenced on 4th October, 2023 with the Petitioner testifying and calling 3 other witnesses. The case was then adjourned for judgment. e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 THE CASE OF THE PETITIONER The evidence of the Petitioner is that he got married to the Respondent traditionally on 25th December, 2010 and under the Ordinance on 26th December, 2010 at the Glorious Power Assemblies of God Church. He tendered in evidence the Marriage certificate which was admitted and marked as Exhibit “A”. The marriage was blessed with one female child who is currently living with the Respondent. It is the case of the Petitioner that after they got married, the parties lived happily in Nyinahin for 6 years. Just after that period the behaviour and attitude of the Respondent changed as she refused to perform her domestic duties as a wife and that the Respondent does not listen to any advice or suggestion from anybody including his mother. According to him, along the line he experienced financial difficulties and so based on the advice of the Respondent the Parties relocated to Accra and lived in Ashiaman with the view of finding work to better their lives. However, things did not go the way they planned and so he returned to Nyinahin with the mindset that he will go back, but he changed his mind and did not return to Ashiaman as he could not secure any job there. So he asked that the Respondent continue to stay in Ashiaman and take care of their child while he caters for them. Accordingly, when school goes on vacation, he sent money to the Respondent for their vacation in Nyinahin and, he in turn visited them in Accra severally to check up on them, spent precious times with them in his capacity as a husband and father. Along the line he realized that their expenditure was high and so he asked the Respondent to move back to e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 Nyinahin with their child and start a business as he has been able to raise some capital for that purpose but the Respondent refused and indicated to him that she will not return to Nyinahin. He avers that after the demise of the biological father of the Respondent, she came and packed her belongings from the matrimonial home in Nyinahin and moved out. But before packing out, she handed over her wedding ring back to him and so for the past 3 years they have not lived together as husband and wife despite all effort to get the Respondent return to him. His family had gone to see the family of the Respondent all to no avail. He avers again that initially he was sending money for the maintenance of the Respondent and the child by “momo through merchant or agent” until he was advised by PW1 to send the money to the Respondent through his own line/number and keep records of same so that in future the Respondent will not accused him of not maintaining their child. This he did whereby he sent momo of GHS400.00 a month to the Respondent’s momo. He tendered in evidence as Exhibit “B” which is momo transaction printout from MTN. He avers further that, the Respondent is not entitled to maintenance arrears since he has been paying maintenance to her. Also since it is the Respondent who has packed out of the matrimonial home she should not be entitled to any damages. He prays the marriage be dissolved as the marriage between them has broken down beyond reconciliation. e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 EVIDENCE OF PW1 His evidence as contained in his witness statement is that he was nominated by his late father Nana Agyei Bosompem II and he stood in his steed to perform all the rites during the Parties marriage. He avers that after the marriage of the Parties, he received several complaints from the Petitioner about the bad attitude of the Respondent towards him. Based upon that he advised the Respondent on countless times to be submissive to her husband all to no avail. He avers again that the Respondent forced the Petitioner to sell his motor bike and the money was given to her to convey her belongings to her hometown. It is his evidence that when he was informed that the Respondent has moved to her hometown, he together with one Maame Wireduawaah and the Petitioner went to the Respondent’s family to check if she had gotten home safely and to enquire if they were aware of what was happening as the Respondent has removed her ring and given same back to the Petitioner meaning that she has divorced the Petitioner. They then demanded for the return of the customary drinks. He confirmed that the issue between the Parties started about 3 years ago and that he was the one who told the Petitioner to send maintenance to the Respondent through his own momo line and the Petitioner complied with the said advice. e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 EVIDENCE OF PW2 His evidence as contained in his witness statement is that he was at his work place when the Respondent came to inform him that a misunderstanding has ensued between her and the Petitioner and so she has given her wedding ring back to the Petitioner. He then advised her to go and apologized to the Petitioner and find a way of retrieving the wedding ring as what she has done amounts to divorce. He avers that the Respondent later came to inform him that the Petitioner has refused to return the rings to him. That the Petitioner later informed him after the Respondent had left Nyinahin that he was going to the Respondent’s home town with PW1. EVIDENCE OF PW 3 Her evidence as contained in her witness statement is that she is a sister-in- law to the Respondent and they all lived in the same house. Sometime ago he heard the Parties herein quarreling so she came out from her room and separated them and realized that the Respondent has packed her belongings and upon enquiry she informed her that she was leaving the marriage to her hometown, Ahafo-Hwediem, as she cannot marry the Petitioner again. She was also informed by the Petitioner that the Respondent handed over her wedding ring to him before she left for her home town. According to her, after the Respondent had left Nyinahin for her hometown, she called her to complain that the Petitioner has not being performing his parental duties and so she in turn called the Petitioner to demand why he has refused to cater for the Respondent and their only child. The Petitioner e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 then called the Respondent, merged the call so the 3 of them could hear each other. The Petitioner then demanded to know from the Respondent why she has told the PW3 that he has not being taking care of their child. The Respondent denied ever calling the PW1 and when she realized that she the PW1 was on the line, she hanged up. The Respondent failed/refused to participate in the trial. However, the Petitioner must understand that the absence of the Respondent herein does not mean an automatic victory for him. His case must be believed by the Court and must be legally tenable before he can have victory, as success in litigation can only be achieved by credible and reliable evidence – IN RE ASHALLY BOTWE LANDS; ADJETEY AGBOSU & ORS, VS KOTEY AND ORS [2003-2004] SCGLR 420 It is also trite learning that a party in a case may refuse to participate in the proceedings altogether or even fail to lead evidence. The rule therefore is that when a party is given the opportunity to participate in Court proceedings or lead evidence in support of her case or in defence of allegations against her but she deliberately fails to avail herself of that opportunity, the Court will proceed with the trial to it conclusion and make deductions or findings on the evidence adduced at the trial. See WATALAH VRS. GHANA PRIME WOOD PRODUCTS LTD. [1973] 2 GLR 126 ISSUE FOR DETERMINATION Whether or not the marriage between the Parties has broken down beyond reconciliation to warrant a dissolution? e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 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; (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 g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 (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. 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 burden of producing evidence and the burden of persuasion in a civil matter as provided under Sections 11 (1) & (4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) are as follows: “11 Burden of producing evidence defined: (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 the evidence, leads a reasonable mind to conclude that the existence of a fact was more probable than its non-existence. “12 Proof by a preponderance of the probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. 14 Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. 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 unless and until this burden is shifted. In the case of MAJOLAGBE VRS. LARBI & ORS. [1959] GLR 190 @ 192 proof was explained 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 1 e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”. A careful reading of the petition and the evidence on record indicate that the petition is premised on desertion. 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 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” 1 e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 For desertion to succeed the above elements must be established. On the cessation of cohabitation, the evidence of the Petitioner is that when things were not going the way they had planned in Accra, he returned to Nyinahin and later asked the Respondent to also join him as he has been able to raise some capital for her to also start her business, but she refused and rather came to pack her belongings after her father’s demise and left for her hometown bringing co-habitation to an end. This evidence of the Petitioner was confirmed by all the 3 witnesses called by him. On the second element, the only requirement that the Petitioner has to prove according to Section 2 (1) (c) of Act 367 is that the Respondent has deserted the Petitioner for a continuous period of 2 years before the petition was filed. The evidence of both the Petitioner and his witnesses is that the issue/problem between the Parties has existed for 3 years at the time of the filing of the petition. There is enough evidence on record that the Parties have not lived together for over 2 years. On the next element, the evidence of the Petitioner is that the Respondent handed over her wedding ring to him that she is no longer interested in the marriage. PW 2 has also stated in his evidence that it was the Respondent herself who went to her shop to tell him that she has given her wedding ring back to the Petitioner and that he told her that amounted to divorce and so she should do everything possible to retrieve the ring. What was the Respondent’s intension of removing and giving back her wedding ring to the Petitioner if not to tell him that she has had enough and that she is no longer interested in their marriage. 1 e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 PW 3 has also stated in her evidence that after she had separated the Parties herein from quarreling, she took the Respondent to her room and that was when she saw that the she had packed all her belongings including utensils and upon her enquiry, the Respondent told her that she was leaving and that she cannot marry the Petitioner again. It is my considered opinion that the Respondent had the intention of abandoning the Petitioner/marriage and this abandonment was without the consent of the Petitioner. The entire testimony of the Petitioner and his witnesses were never contradicted by the Respondent as she refused/failed to participate in the trial. The Respondent having failed to do so, the Court has no option than to admit the evidence of the Petitioner and his witnesses without requiring further proof I therefore, find and hold that the Respondent has deserted the Petitioner and her marriage as all effort made by the family of the Petitioner and the parties pastor to reconcile the parties has proven futile. accordingly, I declare that marriage between the parties herein has broken down beyond reconciliation to warrant it be dissolved. 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 26th December, 2010 on the ground that the Respondent has deserted the marriage. 1 e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 Accordingly, the marriage certificate No. A/G/N/10/02 in respect of their marriage is duly cancelled. It is evident from the Exhibit B that the Petitioner has being sending money to the Respondent through her momo No. 0544448215. Since the Respondent did not participate in the trial to prove her cross- petition (counter-claim), same is dismissed without proof. The Court is mandated to make orders for the maintenance, among others for the upkeep and care of the children upon an application or sou motu. Per Sections 6 and 47 of The Children’s Act, 1998 (Act 560) it is the duty of a parent to provide care, maintenance, necessaries of life and since maintenance of a child is a shared responsibility, the Respondent will accommodate the parties’ child since she lives with her. On 4th October, 2023 when the Petitioner testified, he told the Court that from his calculations, he earns One Thousand Five Hundred Ghana Cedis (GHS1,500.00) since he is not in formal employment. The Petitioner will continue to pay monthly maintenance of Four Hundred Ghana Cedis (GHS400.00) taking into consideration Section 49 of Act 560, he will also be responsible for the child’s educational and medical needs. Since maintenance of a child is a shared responsibility, the Respondent will also be responsible for accommodating the Parties child as she lives with her. 1 e g a P Nyinahin District Court – Asante Emmanuel vrs. Djabeng Comfort – Suit No. A4/03/23 The child of the parties will spend her school (long) vacation and Christmas holidays with the Petitioner and Easter holidays and the rest of the vacation with the Respondent. No order as to costs. SGD. VERA V AKONU DISTRICT MAGISTRATE 1 e g a P