AGYARE VRS GYAMFI (C5/03/2024) [2023] GHACC 655 (8 December 2023)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 8TH DAY OF DECEMBER, 2023 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/03/2024 MATILDA ADJOA ODURAWAA AGYARE --------------- PETITIONER GS-0098-9939, WEIJA WEIJA - ACCRA VRS JOEL ASARE GYAMFI BEHIND GESTHEMANE PRESBY ACHIMOTA PARTIES: PETITIONER PRESENT RESPONDENT ABSENT --------------- RESPONDENT COUNSEL: NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT The Petitioner prays for dissolution of her marriage with the Respondent on the ground that their marriage has broken down beyond reconciliation. The respondent consents to the prayer for dissolution of the marriage. Both parties further state that all attempts at reconciliation have proved futile. THE CASE OF THE PETITIONER In her evidence to the Court, it is the petitioner’s case that she and the Respondent got married at the Accra Metropolitan Assembly, Head Office on 24th May 2019. She attached the Marriage Certificate marked as Exhibit A. That she is a Medical Doctor by profession Page 1 of 10 whilst the Respondent is a Civil Servant. The petitioner continued that after the celebration of the marriage, they co-habited at Mamprobi and later moved to Airport Residential Area all in Accra. She further says that there is no issue of marriage. According to the petitioner, their marriage has broken down beyond reconciliation due to the fact that the Respondent is always verbally abusive at the least provocation despite the fact that she has been submissive and supportive throughout the marriage and tried as much as possible to maintain peace in the home and that has led to her going through emotional stress. It is her case that the Respondent easily gets angered and verbally abuses and disrespects her and her family for no tangible reason. The petitioner further stated that the Respondent has remained unsupportive throughout their marriage despite her remaining supportive to the Respondent and the marriage, but he refuses to treat her with love and affection that is required of a husband and faithful partner. That she entered into the marriage with the hope that the Respondent and herself could build their future together, however, the Respondent has continuously behaved in such a way that this dream cannot materialize. That she is the one who has suffered a lot due to the Respondent’s unreasonable behaviour in the marriage. The Petitioner did not call witness and thereafter closed her case. THE CASE OF THE RESPONDENT The respondent in his evidence confirmed that the parties got married under the Ordinance on 24th May 2019. He continued that the marriage between the Petitioner and himself has broken down beyond reconciliation and a divorce will preserve his life and his mental health. That there is no issue to the marriage. Page 2 of 10 According to the respondent, family means a lot to him, and he tried his best to let the marriage work but with deep consideration to his current situation, the best decision is to quit the marriage since he has come to realize and accept that they are not compatible. The Respondent thereafter closed his case without calling witness. Based on the pleadings and the evidence led, the Court set down the following issues for determination. LEGAL ISSUES a. Whether or not there is unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. b. Whether or not the marriage between the Petitioner and the Respondent has broken down beyond reconciliation. BURDEN AND STANDARD OF PROOF Page 3 of 10 In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his case. Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “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”. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities. No exceptions were made.” Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J. A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. The standard of proof as stated therefore applies to a petition for divorce. See Happee v. Happee [1971] 1 GLR 104. Thus, the burden is on the Petitioner to prove the facts alleged to establish the breakdown of the marriage. ANALYSIS Page 4 of 10 Before I analyze the evidence adduced at the hearing, it is essential to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(1) 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:- ... (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 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 husband 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. Page 5 of 10 (3) notwithstanding that the Court finds the existence of one or more of the facts specified in 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." In the instant case the burden is therefore on the Petitioner to prove that the marriage has broken down completely; proof of one or more of the facts under section 2(1) of Act 367 is/are necessary. From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner in her evidence testified that the Respondent is always verbally abusive at the least provocation. That the Respondent easily gets angered, verbally abuses and disrespects her and her family for no tangible reason. The petitioner also stated that the Respondent has remained unsupportive throughout their marriage despite her remaining supportive to the Respondent but he refuses to treat her with love and affection that is required of a husband and faithful partner. The respondent did not deny these averments by the petitioner neither did he cross examine the petitioner on these assertions. In Fori v. Ayirebi [1966] GLR 627, the Supreme Court held that: “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact”. Page 6 of 10 The principle was further enunciated by Ansah JSC in Takoradi Flour Mills v. Samir Faris [2005 -2006] SCGLR 882 when he referred to the case of Tutu v. Gogo, Civil Appeal No. 25/07, dated 28th April 1969, Court of Appeal unreported; digested in 1969 CC76 where Ollenu JA (as he then was) stated thus: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the Court.” Also, in the case of Quaigraine v. Adams [1981] GLR 599 CA, it was 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. Applying the above authorities to the instant case, the Respondent is deemed to have acknowledged those facts as asserted by the Petitioner and the Court hereby accepts same. From case law, conducts such as assault of a partner, threat of death, writing damaging letters to a spouse’s employers, causing the arrest of a spouse without just cause, denial of sex to a partner, failing to cooperate in finding solution to the couple’s inability to have children and verbal abuse have all been held to constitute behaviour which, coupled with the inability of the parties to reconcile can lead to a dissolution of the marriage. See the case of Happee v. Happee & Anor [1974] 2 GLR 186. Also, in the case of Mensah v. Mensah [1972] 2 GLR 198, the Court held that: Page 7 of 10 “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 circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty ...” Flowing from the above, verbal assault or abuse constitutes unreasonable behaviour; therefore for the Respondent to have always verbally assault or abuse the Petitioner amounted to unreasonable behaviour. From the above evidence, I hold on the first issue that there was unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. Moreover, both parties told the Court in their respective evidence that they have tried their best to make the marriage work but have not been able to achieve that. From the evidence on record, both parties after diligent effort, have been unable to reconcile their differences. I therefore hold same as a fact. In Knudsen v. Knudsen [1976] 1 GLR 204 CA, the Court of Appeal per Amissah JA stated as follows: “… Of course, in a state of affairs where the duty is placed upon the Petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the Court arrive at the desired conclusion. It does not, to my mind follow, however, that a divorce will never be granted in any case unless evidence of an unsuccessful attempt at reconciliation is led.” Page 8 of 10 The parties led evidence that there have been several attempts at reconciliation but all have proved futile and that the marriage has broken down beyond reconciliation. After a careful examination of the evidence adduced by the parties, it is undisputable that the parties to the marriage have been unable to reconcile their differences. It is also not in issue that the parties have not lived as husband and wife for some time now and the Respondent has no objection to the dissolution of their marriage. Flowing from the above, I find on second issue that the marriage between the parties has broken down beyond reconciliation. CONCLUSION From the foregoing, I conclude that the marriage between the petitioner and the respondent has broken down beyond reconciliation and in the circumstances; I do hereby grant the Petitioner’s prayer for dissolution of the marriage and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the parties on 24th May 2019, at the Accra Metropolitan Assembly, Head Office in Accra, thus the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. 0970/MC/2019 and License No. AMA 10190 2950/2019 is accordingly cancelled. 3. There will be no order as to financial provision to either party to the marriage considering the circumstances of the parties. 4. The parties shall bear their own cost of the suit. Page 9 of 10 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Page 10 of 10