HAMMOND VRS HAMMOND (G/AC/DG/A4/54/23) [2023] GHADC 830 (8 December 2023)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON 8TH DECEMBER, 2023 SUIT NUMBER: G/AC/DG/A4/54/23 ALFRED ODEI HAMMOND - PETITIONER H/NO 6 TEINYO STREET AKWETEYMAN VS BERTHA HAMMOND HSE NO. UNKNOWN KWABENYA - RESPONDENT …………………………………………………………………………………………………… TIME: 12:20PM PETITONER PRESENT RESPONDENT ABSENT NO LEGAL REPRESENTATION JUDGMENT Per his petition for divorce filed on 9/3/23, the Petitioner prayed the Court for the following relief; (a) Dissolution (b) Custody of the child P a g e 1 | 7 According to the Petitioner, he married the Respondent under the ordinance on 27/5/2007 at Accra Metropolitan Assembly. He said after their marriage, they started having problems. He further stated that due to the accommodation problem both agreed to stay in their parents’ home for the Petitioner to develop their land quickly. He said that notwithstanding the attempt by family members to resolve their difference have proven unsuccessful. There is on record proof of service of the Petition for divorce and hearing notices. Under order 25 Rule 1(1)(a) of the District Court Rule, 2009 (C. I 59) where an action is called for trial and the Defendant fails to attend the Plaintiff will be allowed to mount the box to prove his or her claim. Again, where a party is served and he/she fails to attend Court after the Court is satisfied that service has duly been effected, he/ she is taken to have deliberately failed to take advantage of the opportunity to be heard. See the cases of; Republic Vs. Circuit Judge; Ex – Parte Dzaka [1984 – 86] 1 GLR 741, Republic Vs. High Court, Cape Coast; Ex – Parte Marwan Kort [1998 -1999] SCGLR 833; Ankumah Vs. City Investment Co. Ltd [2007 -2008] 1 SCGLR 1064, (Holding 2); In Re West Cost Dyeing Ind. LTD Adom Vs. Tandoh [1987 -1988] 2GLR, 561. The Court on the strength of these authorities therefore proceeded to hear the Petitioner prove his case. Per the Petitioner’s petition he and the Respondent married on 27/5/2007 at Accra Metropolitan Assembly. He said that both parties cohabited for about 6 years and agreed to live apart in order to develop the land. According to the Petitioner the Respondent attitude towards him changed and started not cooperating with the Petitioner by refusing to visit the Petitioner. P a g e 2 | 7 Sections 2 of the Matrimonial Causes Act 1971 (Act 367) on proof of breakdown of marriage provided as follows; (a) That the Respondent has committed adultery and that by reason of such adultery the Petitioner finds it intolerable to live with the Respondent; or (b) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; or (c) That the Respondent has deserted the Petitioner for continuous period of at least two years immediately preceding the presentation of the Petition; or (d) That the parties to the marriage have not lived as man 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 such 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 notwithstanding the refusal; or (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. P a g e 3 | 7 The law is that the Court must be satisfied on all the evidence that the marriage has broken down beyond reconciliation before it grants the order for the dissolution of the marriage. it is trite that merely asserting that a marriage has broken down irretrievably would not suffice even if some of the conditions in section 2(1) of the Act are established and the evidence before the Court shall be the guiding light of the Court. Michael Kyei Baffour Vs. Gloria Carlis Anaman [2018] 123 GMJ 95, Donkor V Donkor [1982 -83] GLR 1158, Adjetey Vs. Adjetey [1973] 1 GLR 216 From the evidence per the Petitioner’s petition the main issue for the resolution of the Court is whether or not the marriage between the Petitioner and Respondent has broken down beyond reconciliation. Under this issue, the Petitioner is to satisfy the Court of the existence of at least one of the facts mentioned. Legal Analysis and Evaluation of Evidence Section 1(1) of the Matrimonial Causes Act 1971 (Act 367) allows either party to a marriage to present a petition to the Court for divorce. Section 1(2) of the Act further emphasis that the sole ground for granting a Petition for divorce shall be that the marriage has broken down beyond reconciliation. However, in order to prove that the marriage has broken down beyond reconciliation the Petitioner shall prove to the satisfaction of the Court one or more of the six facts specified in Section 2(1)(a)- (f) of Act 367. Proof of any one of these facts raises a presumption that the marriage has broken down beyond reconciliation. If any of these facts is made, the Court must grant the dissolution unless it is satisfied that the marriage has not broken down irretrievably. It is natural to part out that that although, the Court may find the existence of one or more of facts specified, the law does not require the Court to decree divorce unless it is satisfied on all the evidence that the marriage has indeed broken down beyond reconciliation. In the case of Kotei Vs. Kotei [1974] 2GLR 172 Sarkodie J stated that; P a g e 4 | 7 ‘Notwithstanding proof of one of the facts showing that the marriage has broken down the Court has a discretion to refuse to grant the decree of dissolution on the ground that the marriage has not in fact broken down beyond reconciliation. The discretion given to the Court is not a discretion to grant but a discretion to refuse a decree of dissolution. The burden is not on the Petitioner to show that special facts or grounds existed justifying the exercise of the Court’s discretion; once he or she comes within any one of the provisions specified in Section 2(1)(e) and (f) of Act 367 the presumption is in his or her favor’. The burden of proof and persuasion is on the part of the person making the averments to adduce sufficient, cogent, and reliable evidence to support the allegation contained in the petition or cross petition for the Court to arrive at the decision the acts alleged exist. Although it is the duty of the Court to inquire so far as it reasonably can, into facts alleged by both parties, the burden on the petitioner is solely to establish one of the facts and it is for the Respondent in defended suit to show if he wishes that the marriage has not broken down irretrievably. See Ash Vs. Ash 1972 1 ALL ER 582, Pheasant Vs. Pheasant 1972 1 ALL ER 587. From the pleadings and evidence adduced in Court, the Petitioner seeks to rely on Section 2 (c) Act 367. Desertion therefore can be looked at in the sense of physical withdrawal from a place and withdrawal from the state of things. See Naylor Vs. Naylor [1961] 2 ALL ER 129. For the petitioner to establish desertion he must prove five basic elements. 1. A friction separation or actual separation 2. Anima derendi or can intend to bring cohabitation to an end 3. Lack of consent to the separation by the Petitioner 4. want of reasonable excuse on the part of the Respondent 5. Continues separation for at least two years before the filing the petition. P a g e 5 | 7 In the case of Hughes V. Hughes [1973] 2 GLR 342, the Court held that for the consent of the wife to averment to desertion, the Court has to be satisfied it was unjustifiable withdrawal from cohabitation and that she had the intention of remaining separate permanently, from him. Where a spouse has agreed that other spouse could not complain that the other was guilty of desertion as separation was by consent. From the Petitioner’s evidence, he married the Respondent on 27/5/2007and cohabited together for 6 years until having issues with accommodation so both parties agreed to leave apart at each person’s parents’ home with the understanding of both parties visiting another. It is his evidence that the Respondent has failed to visit him and showing some attitude towards him. The parties have not lived together for the past years. There is nothing to convince the Court that the Respondent would return to join the Petitioner. Conclusion There is no denial of the fact that the marriage between parties has broken down beyond reconciliation. It would serve no useful purpose to allow parties to remain married. The parties have not been living together for over 5 years now. From the totality of evidence adduced in the trial, by the petitioner, it is the Court’s opinion that the marriage between parties has irretrievably broken down and it will be erroneous for the Court to rule that the marriage should still subsist. In the light of the above, I hold that the Ordinance marriage celebrated between parties on 27th May 2007 at Accra Metropolitan Assembly is hereby dissolved as follows; 1) Custody of the issue pf the marriage is granted to the Petitioner with reasonable access to the Respondent. 2) There will be no order as to cost. P a g e 6 | 7 HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P a g e 7 | 7