EBUTOR VRS DUODU (C5/184/2023) [2023] GHACC 614 (15 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON 15TH DAY OF DECEMBER, 2023 BEFORE HER HONOUR KIZITA NAA KOOWA QUARSHIE, CIRCUIT COURT JUDGE BENEDICTA EBUTOR = PETITIONER SUIT NO. C5/184/2023 HOUSE NUMBER ADB 377 OYIBI – ACCRA VS PHILIP DUODU UNNUMBERED HOUSE DANSOMAN – ACCRA = RESPONDENT ==================================================== JUDGMENT ==================================================== Per a petition filed on the 2nd of March, 2023, the Petitioner who has been married to the Respondent prayed the Honourable Court for the following reliefs: i. ii. That the said marriage be dissolved That the Respondent be ordered to pay lump sum to the Petitioner. iii. Cost After service of the Notice to Appear also filed on the 2nd March, 2023 on the Respondent he duly filed an answer to the petition on the 27th of March, 2023 where he cross-petitioned and prayed that: a. The marriage between the parties annulled due to lack of consummation after the marriage b. That the Petitioner be ordered to pay to him an amount of GH¢20,000.00 as part of the expenses incurred by him for the wedding ceremony c. Cost d. And any order(s) as the Honurable Court deems fit. On 9th of May, 2023 the Petitioner filed a reply to the Answer to cross-petition and the court set the matter down for trial on the 23rd of June, 2023. Both parties complied with the orders of the court and filed pre-trial checklist and witness statement. On the 13th of October, 2023 the court proceeded to take evidence of the parties and concluded same on that date. PETITIONER’S CASE Petitioner stated in her petition that she was lawfully married under the marriage Ordinance (Cap 127) to the Respondent on the 15th of April, 2021 at Accra Metropolitan Assembly. They did not live together after the marriage. She stayed at Oyibi while Respondent stayed at Dansoman. She continued that there is no child between them and she is praying for dissolution of her marriage from Petitioner since same has broken down beyond reconciliation. Petitioner attached her marriage certificate as Exhibit ‘A’ in support of her case. RESPONDENT’S CASE Respondent stated in his answer that he is an Ulber Driver and after the couple signed the marriage certificate at the Accra Metropolitan Assembly he was informed by his wife a few hours before the white wedding ceremony that she no longer wanted to proceed with the marriage. Respondent states at Paragraph 9 “that the parties never consummated the marriage after signing at the Accra Metropolitan Assembly since Petitioner refused to go ahead with the marriage”. Respondent says he incurred cost for the decoration, feed, photography and drinks which he purchased for their celebration on Saturday. Respondent finally submitted that Petitioner’s refusal to continue with the marriage after 9 years of courtship has led him to suffer from anxiety, extreme embarrassment. Petitioner stated that Respondent has on several occasions said he does not trust the first born child of the marriage and a DNA test for the child should be done before he can accept the paternity of the child. Again he never maintains her and his family’s interference in the marriage is leading to a breakdown of the marriage. Petitioner further submitted that though they courted for 9 years before they married they are incompatible and have irreconcilable differences and can therefore not stay together in marriage. She said as a result she is anxious distressed and harassed and prays the Honourable Court to dissolve the marriage and order Petitioner to him lump sum plus costs. On 9th of May, 2023 in Petitioner’s reply to answer and cross-petition she further submitted that Respondent never allowed her to visit him in his house at Dansoman and packed her personal effects from his house and again tried to disgrace her by shouting at the top of his voice to disrupt Church service she was attending and told her he bitterly regrets marrying disgrace and depression and prays the court to annual the marriage and order Petitioner to pay an amount of GH¢20,000.00 to him for costs incurred by him for the ceremony that never happened and costs. THE LEGAL ISSUES The court is confronted with two different prayers: 1. For dissolution of marriage 2. For annulment due to lack of consummation by the parties. Per Section 1(2) of the Matrimonial Causes Act the sole ground for granting a divorce is due to the fact that the marriage between the parties has broken down reconciliation to go ahead to list the grounds the court will consider before divorce is granted. Per Section 13(1) titled Nullity under the Matrimonial Causes Act. A person may present a petition to the court for a decree of nullity for annulling the marriage on the ground that it is by law void or voidable. Section 13 (2) a states “In addition to any grounds on which a marriage is by law void or voidable, a marriage is voidable subject to subsection (3) on the ground: a. That the marriage has not been consummated owing to the wilful refusal of the Respondent to consummate it; or b. That at the time of the marriage either party to the marriage was of unsound mind or subject to recurrent attacks of insanity; or c. That the Respondent was at the time of the marriage pregnant by some person other than the petitioner; or d. That the Respondent was at the time of the marriage suffering from an incurable venereal disease in a communicable form. The court sets the following issues down: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the court should make an order for thee marriage celebrated between the parties to be annulled. 3. Whether or not the Petitioner should be paid a lump sum by Respondent. 4. Whether or not the Respondent should be paid GH¢20,000.00as compensation for costs incurred by him for the marriage celebration. 5. Whether or not the court should order the parties to pay cost to each other or bear their own costs. ANALYSIS/APPLICATION OF THE LAW TO THE FACTS AND RESOLVING THE ISSUES (EVALUATING) PETITIONER Issue 1: Whether or not the marriage celebrated between the parties on 30th of July, 2011 has broken down beyond reconciliation RELEVANT LAW The Petitioner having commenced an action in this Honourable Court has the burden of adducing evidence to get the court to rule in her favour. Section 12 of the Evidence Act 1975 NRCD 323 provides: 12(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 12(2) Preponderance of the probabilities means the degree of certainty of belief in the mind of the tribunal of fact or the court which it is convinced that the existence of a fact is more probable than its non-existence. In the case of Majolagbe v Larbi & Ors. (1959) GLR 190 it was held; “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 eg by production of documents, description of things, reference 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 producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”. The Petitioner prays for dissolution of her marriage. Section 2(1) of the Matrimonial Causes Act lists the factors the court will consider to prove that marriage has broken down beyond reconciliation The Court refers to Section 2(1) of the MCA to determine whether or not the marriage between the parties has broken down beyond repairs, The Petitioner cited unreasonable behaviour of the Respondent Particularly i. That the Respondent for a long time has refused to have sex with him, ii. That the Respondent has been so disrespectful to the Petitioner on so many occasions and that she has turned her members against the Petitioner. iii. And that the Respondent has for a long time failed to perform her functions as a wife. iv. The Respondent regularly verbally abuses the Petitioner causing him to lose self- confidence and feel degraded. From Petitioner’s pleadings the court surmises that Petitioner’s assertion that the marriage has broken down beyond repairs is due to the unreasonable behaviour of Respondent and the parties’ inability to reconcile their differences. Before I proceed I will refer to the facts and evidence on record as one party is praying for dissolution and or for annulment. Petitioner in her evidence before the court at page 339 of the The Petitioner under cross-examination had the following to say: Q. Benedicta assuming whatever you have said here is right it you will agree with me that notwithstanding what you have said Respondent and you went to Accra Metropolitan Assembly on 15th of April, 2021 to execute the marriage certificate not so? A. Yes Q. And even when you and your family called of the wedding ceremony slated for the Saturday, 17th of April, 2021 Respondent and his family still came to see you and your family so that the ceremony will happen not so? A. My lady please yes Q. And you will agree with me that from the 15th April, 2021 till now you and the Respondent have not had sex as required of a husband and wife not so? A. Yes Q. And indeed from the 15th April, 2021 you and Respondent have not lived as a husband and wife not so? A. No we have not my lady Q. So I am putting it to you that based on your own admissions there is no marriage between you and the Respondent? A. Yes my lady Earlier in the pleadings of the Petitioner paragraph 10 it was stated “that the Respondent told the Petitioner on several occasions that he does not trust the first born child of the marriage, if anything at all, she has to do a DNA test for the child before he can accept the paternity of the child as his. As will be gleaned from the evidence of the Respondent later the above statement was not a fact but rather an opinion that Respondent “expressed if the couple was to have a child”. From the evidence on record it is clear that the couple never consummated their marriage after they signed the marriage certificate at the Accra Metropolitan Assembly in April of the year 2021. Section 13 of the Matrimonial Causes Act already stated gives a person the right to petition the court for a decree of nullity for annulling the marriage on the ground that it is by law void or voidable, based on the fact amongst others that the marriage has not been consummated owing to the wilful refusal of the Respondent to consummated it. In the case of Horton v Horton {1947} 2 All E. R. 871 it was held that the expression “wilful refusal” connotes settled and determined decision arrived at with no just excuse and the whole history of the marriage is therefore relevant to the decision. In his Book: THE LAW ON FAMILY RELATIONS IN GHANA BY WILLIAM CORNELIUS EKOW DANIELS AT PAGE 156, the learned author quotes on Sir Samuel Evans paragraph 62. “By wilful refusal I do not mean a mere temporary unwillingness due to a passing phase, or the result of coyness a feeling of delicacy, affected or read as nervous ignorance, case and kindred, but a wilful, determined and steadfast refusal to perform obligations and to carry out the duties which the marriage contract implies”. In Dickson v Dickson (Orse Phillips) (1913) page 198. The decision that wilful refusal was in itself a valid ground for annulling the marriage was overruled by the CA in Napier v Napier (otherwise Goodban) {1915}. In Jodla v Jodla {1960} 1WLR 236 it was held that the refusal of the husband to arrange a Roman Catholic religious ceremony gave the wife a just excuse to refuse to have sexual intercourse with him. “The Act speaks of wilful refusal on the part of the respondent. A spouse cannot file a petition for nullity on the ground of his own wilful refusal to consummate the marriage”. See 1st paragraph page 157 on the Law on Family Relations in Ghana by William Cornelius Ekow Daniels. Gleaning from the above though Petitioner prayed for a dissolution of her marriage and cited some instances of unreasonable behaviour on the part of the Respondent, the court notes that the marriage between the parties is voidable and guided by Section 13(2) a of the Matrimonial Causes Act, notes that the Petitioner has been able to prove on a balance of probabilities that the marriage between the herself and Respondent should be dissolved or alternatively annulled since it factually never existed. Issue 2 Whether or not the Petitioner entitled to a lump sum. From the facts on record, Petitioner and Respondent after their marriage led their separate lives with neither fulfilling the trading duties of marriage eg for woman cooking, washing and taking care of the and the home. For man paying chop money, washing the car assisting with looking for children of home and providing for the security and comfort of his family etc. Section 20(1) of the Matrimonial Causes Act states “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. Amua-Sakyi JSC in the case of RIBEIRO VS RIBEIRO {1989-1990} 2 GLR 109 page 115 to 116 on financial provision stated as follows: “It is clear that under section 20(1) of Act 367, the court has power to grant financial provision where married couples are divorced and the basic consideration is the requirement for the court to examine the need of the parties”. Also in the case of Eunice Antwi v Dr. John Antwi {2016} JELR 107581 it was held as thus; “What is just and equitable is determined by the income earning capacity property and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage, the age of each party to the marriage and the duration of the marriage”. Indeed during cross-exams Petitioner had the following to say when questioned by learned counsel for the Respondent. Q. But at least you were aware the food, canopies, chairs etc had substantially been paid for by the Respondent not so? A. Pleas both of us contributed towards the payment of those items. Q. But like I indicated substantially it was paid for by the Respondent you agree with me? A. Sure because initially we planned to do all the cooking at my place but he said his family wanted to help pay for some of the cooking so I took the engagement aspect and he took the wedding. Q. And then the day before the wedding the Friday before the wedding the Friday before the wedding you and your family called the ceremony not so? A. Yes it was so due to fear anxiety and panic. When we went to Accra Metropolitan Assembly to sign before the actual signing he was silent when we came out so I asked him why he was quiet and he told me like he is going to put himself into something that he will regret later. So I asked him what exactly is it? Is he marrying me and he did not talk. He did not say anything. Then we all left then subsequently too I was in town when me called me that anytime I am free I should be listening to radio. That they are discussing about marriage issues women who usually cheat on their husband who got pregnant. It kept on repeating itself that particular issue. What is obvious is that after a substantial amount of money was spent on the wedding that never was, Petitioner and her family also decided to call of the marriage due to Petitioner “fear, anxiety and panic”. This court guided by S20 of the Matrimonial Causes Act and cases in support does not see how Petitioner has been able to demonstrate that she is entitled to the payment of a lump sum. Issue 3 Whether or not the Petitioner entitled to cost. Order 74 r1 of C. I 47 clearly says that the grant of cost in proceedings before the court is discretionary and the court shall have full power and to grant costs to the party it is determines. After a careful evaluation and of the evidence on record the court makes the following orders. 1. An order for the annulment of the marriage certificate between the parties on the 15th April, 2021. This 15th day of December, 2023. 2. The court makes no order for the payment of lump sum to the Petitioner. 3. The court makes no orders for the payment of GH¢20,000.00 to the Respondent. 4. The parties are to bear their own costs. H/H KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE 12