HODARI-OKAE VRS LAWSON (C5/102/2023) [2023] GHACC 630 (8 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON 8TH DAY OF DECEMBER, 2023 BEFORE HER HONOUR KIZITA NAA KOOWA QUARSHIE, CIRCUIT COURT JUDGE SUIT NO. C5/102/2023 MAISHA ADZO HODARI-OKAE = PETITIONER (ACTING PER HER LAWFUL ATTORNEY) MAAME ADJOA ANOMH VS RICHARD NUNOO AGBLULU LAWSON = RESPONDENT ==================================================== JUDGMENT ==================================================== ‘Marriage is legally or formally recognized as the union of two people as partners in a personal relationship historically and in some jurisdictions specifically a union between a man and a woman’. (Google definition) “The Christian Church under the influence of St. Paul, viewed marriage to be ‘Honourable in all’. Jane Austen, the British novelist also wrote in one of her novels that ‘Happiness in marriage is entirely a matter of chance’. (Pride and Prejudice Ch.5 188)”. Thus begun the married life of the Petitioner (Maisha) and the Respondent (Richard) when they embarked on this very journey on the 26th day of April 2019 at the Christ the King Catholic Church at cantonments in Accra. Subsequently due to various reasons Maisha by a petition filed on the 3rd November 2022 came to the Honourable Court praying that the marriage between the parties be dissolved and that each party should bear its own costs. Maisha who is ordinarily resident in the United States of America gave Power of Attorney to Maame Adwoa Anomh dated 27th October, 2022. On the 20th of January, 2023 lawyer for the petitioner prayed the Court to set the matter down for trial and the Court guided by Order 65 r21 of C. I. 47 did so and ordered the parties to file their witness statements and pre-trial checklist within a month and serve Respondent with same plus Court notes and a Hearing Notices. Respondent who had filed Appearance and Answer to the petition on the 3rd November, 2022 and on the 3rd March, 2023 was present in Court. Petitioner filed a reply to the Answer on the 11th of May, 2023. On the 23rd March, 2023, the Respondent told the Court that he was still in love with the Petitioner and wants the marriage between the parties to continue, which he indeed had stated in the Answer to the petition. Petitioner also reminded the Court that per paragraph 22 of her reply she is entitled to all her reliefs bought since the marriage has broken down beyond reconciliation. Mindful of the Respondent’s confession of love for his wife and his desire for the marriage to continue the Court adjourned for a few months. On 11th of May 2023 the Court ordered the Respondent to file his wittiness statements and pre-trial checklist as Petitioner was adamant that the marriage be dissolved as same had broken down beyond reconciliation. On the 31st August 2023 the Court successfully concluded CMC which had suffered some set-backs due to late filing of necessary processes by both parties and commenced taking evidence of Petitioner through her Lawful Attorney. On the 6th October 2023 and 13th October 2023 the Court continued with the taking of evidence and the case was closed on the 13th October 2023. Petitioner’s case Petitioner stated in her petition that she and Respondent were married on the 26th April 2019 at Christ the King Catholic Church Cantonments, Accra. She is an analyst. Shortly after their marriage petitioner travelled to the USA where she is domiciled. The couple are both Ghanaian citizens and have no child between them. Petitioner said she is in Court because of the unreasonable behaviour of Respondent which has led to the marriage between them to break down beyond reconciliation. Petitioner amongst others claimed Respondent is verbally abusive, not truthful, physically abusive, does not provide any financial support, is controlling, not communicative and is clearly only interested in benefitting from the United States citizenship held by her. In her reply to Respondent’s subsequent answer she went on to say that Respondent’s behaviour drew a wedge between them and her parents who had tried on several occasions to talk to Respondent for resolution of their issues albeit unsuccessfully and no member of Respondent’s family had reached out to Petitioner to ascertain the problem or ask the couple what their issues are. Petitioner cited some instances whilst she was in Ghana where Respondent did not show support when she was sick (her mother had to pay her medical bills). Respondent refusing to get her food and his keeping of late nights even though she was in town for a short while. She concluded at paragraph 21 of her reply that Respondent does not love her but is using her to enrich himself. In support of her case Petitioner attached Exhibits ‘A’ series namely; Exhibit ‘A’ A1 A2 A3 - - - - Power of Attorney Photographs of 4 pages Pen Drive Picture of the Respondent and a couple he met at a hotel A4 - Brochure (funeral) A5 series A6 - - Financial transactions 4 pages Whatsapp Communication 3 pages between the couple. RESPONDENT’S CASE Respondent claims he is currently unemployed. In his answer he denied almost all the averments contained in the petition save for the fact that he is married to Petitioner, who is a dual citizen of Ghana and United States, that there are no issues of the marriage and that there have been no previous proceedings with reference to the marriage. Respondent however did not agree that the marriage has broken down beyond reconciliation as he still loved his wife and wanted the Court to stay its hand for resolution of the issues between them. Respondent later filed a supplementary witness statement in addition to his witness statement where at paragraph 7 he stated; “After meeting with my family members it is evident that my marriage with the Petitioner has broken down beyond reconciliation and I pray this Honourable Court to dissolve the marriage between Petitioner and me”. Paragraph 8 “That is all I have to say”. In support of his case he attached the following exhibits: Exhibit 1: Exhibit 2: Exhibit 3: - - - Obituary of Christiana Ayele Quaye Lawson Whattsapp messages 2 pages Obituary of the late Richard Latevi Agbolulu Lawson ISSUES FOR DETERMINATION Per Section 1(2) of the Matrimonial Causes Act, 1971 Act 367, (Act 167) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. The Court sets the following issues(s) down for determination. (1) Whether the marriage between the parties has broken down beyond reconciliation. (2) Whether the parties are to bear their own costs. ANALYSIS/APPLICATION OF THE LAW TO THE FACTS AND RESOLVING ISSUES (EVALUATION) PETITIONER Issue 1: Whether or not the marriage celebrated between the parties on 30th July, 2011 has broken down beyond reconciliation. Section 10(1) of the Evidence Act 1975 (NCRD 323) provides that, for the purpose of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. SECTION 11 – BURDEN OF PRODUCING EVIDENCE Section 11(1) of the Evidence Act 1975 (Act 323) says: For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. 11(4) In other circumstances the burden for producing evidence requires a party to produce sufficient evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In the case of ENGMAN V DIVINE WORD MISSIONARIES 2014 68 GMJ 95 the Court held thus: “Going on the provisions of section 11 of the Evidence Act, 1975, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. In a civil action, this burden demands that a party produces sufficient evidence such as will lead a reasonable mind, on all the evidence to conclude that the existence of the fact in issue 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”. RELEVANT LAW The law governing the dissolution of monogamous marriage in Ghana is the Matrimonial Causes Act 1971 (Act 367) Section (1) of the Act 367 states that a petition for divorce may be presented to the Court by either party to a marriage and the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Under Section 2 of Act 367, it further states that 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 factors: ANALYSIS OF PETITIONER’S CASE Petitioner says the marriage between herself and the Respondent has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent. Section 2 of Act 367 “Proof of breakdown of marriage lists the various things the Courts will look at to prove that the marriage has broken down beyond reconciliation. 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 difference. In the case of Hughes v Hughes (1973) 2 GLR 342 Sarkodee J., in his judgment said; “To succeed, the Petitioner must show that the Respondent’s conduct reached a certain degree of severity that no reasonable person would tolerate” Again in Knusden vs Knusden (1976) 1GLR 204 CA on the test of unreasonable behaviour it was held: “The behaviour of a party which will lead to this conclusion would range over a wide variety of acts”. It may consist of one act if it is a sufficient ground of a persistent course of conduct or series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so”. At this juncture, the Court will consider whether the evidence of the Petitioner has reached this threshold? Petitioner in her pleadings contained in her petition and reply enumerated a plethora of instances where respondent behaved unreasonably toward her culminating in the marriage breaking down beyond reconciliation. To buttress some of the instances of unreasonable behaviour, Petitioner attached Exhibits). A1 to A6. (‘A is the power of Attorney) ‘A1’ shows 4 pictures with the respondent holding a couple of white gold wedding and engagement bands, another picture shows the same ring after they turned yellow, and the Respondent on what appears to be a marriage ceremony holding a white gold ring. ‘A2’ a pen drive recorded an audio conversation between Petitioner and unidentified male voice discussing the colour of the rings. The unidentified man in the short conversation is heard telling petitioner that Respondent ordered yellow gold rings from him. Petitioner at paragraph 9 of her petition under the Heading particulars of unreasonable behaviour. Stated under 9(iii). “That the Respondent is not truthful and has consistently deceived the Petitioner. The Petitioner states that when the parties were getting married, there was an agreement that the Respondent will purchase a White gold ring for the Petitioner. The ring given to the Petitioner appeared to be white gold but after the reception, when the Petitioner went to wash her hand, the ring became yellow, Respondent was dishonest to the Petitioner about the ring”. Exhibit A2 earlier discussed however, showed that the rings purchased by Respondent were not white gold and the issue for the Petitioner was why Respondent had to be dishonest about it. Petitioner again spoke about Respondent being physically abusive towards her on two separate occasions and actually slapping her face twice (paragraph 9 iii) of the petition stated same. Petitioner in addition to the other numerous factors which she found unreasonable pointed the Court to the fact that Respondent was in to make money from her and benefit from her status as a citizen of the United States of America to gain citizenship from her through their marriage. Paragraph 21 of her answer stated: “Petitioner further states that during the short period that the parties have been married, the Respondent has made incessant and excessive demands for the Petitioner to get Respondent a car, rent an expensive place for Respondent in East Legon and also to open a joint account for the parties through which the Respondent’s remuneration should be paid for the Respondent to administer. All these actions of the Respondent go to show that Respondent does not love the Petitioner but is using the Petitioner to enrich Respondent”. The Court will refer to the Petitioner’s witness statement through her lawful attorney Maame Adjoa Anomh. In the few instances that the parties lived together in the same place as husband and wife, the Respondent has been physically abusive towards the Petitioner and has put his hands on the Petitioner on two separate occasions. Respondent has slapped the Petitioner twice in the face after they argued in December 2020. On all the occasions the Petitioner visited the Respondent in Ghana, the Respondent shunned Petitioner's companionship and preferred going out to have fun without the Petitioner. It is as though the Respondent does not want to be seen with the Petitioner. In December, 2020 whilst staying at the Midindi Hotel in Cantonments, the Respondent went out without the Petitioner and did not come back to the hotel room till the following day. Petitioner did not know of Respondent's whereabouts and was distressed. The Petitioner informed the Respondent that she was hungry and needed something to eat harboring hope that the Respondent would bring the Petitioner something to eat and spend time with the Petitioner (because the Petitioner does not live in Ghana and always hoped to spend as much time as possible with the Respondent whenever she visited). The Respondent retorted that Petitioner should go to bed on an empty stomach and eat the following day. The Respondent has always gone to great lengths to isolate the Petitioner from their respective families. Whenever the Petitioner sends money to the Respondent's mother as a gift, the Respondent will confront her in a hostile manner as though the Petitioner has offended him by her actions. The Respondent does not want Petitioner to interact with the other members of his family and keeps the Petitioner from having contact with them. Respondent did not allow his family to include the Petitioner in Respondent's late mother's funeral brochure. The Respondent is always trying to control Petitioner's every move. The Respondent will not allow the Petitioner to have conversations with friends or family on the phone. When the Petitioner is on the phone with her family, the Respondent will ask her to hang up the call and is always insisting that Petitioner speaks only to him and no one else. The Respondent has never made any financial commitments towards Petitioner's wellbeing as a husband should. Petitioner fell terribly ill when Petitioner visited the Respondent in December 2020, the Respondent however refused to pay a dime of the medical bills. It was Petitioner's mother who came to her aid and paid all her bills in full. Respondent has never given Petitioner money for upkeep in all the time that the parties have lived together in one place not to talk of when the Petitioner is in the United States however, the Petitioner has always sent the Respondent money. The Respondent hardly ever attempts to communicate with the Petitioner and refuses to pick her calls. The Respondent also refuses to reply to her text messages and this has impacted the Petitioner negatively because the marriage is a long distance marriage and effective communication is necessary to keep the marriage alive. This behaviour of the Respondent has had a debilitating effect on the Petitioner's mental health because Petitioner cannot understand the reason why Respondent treats the Petitioner in that manner. The Respondent has made it clear to the Petitioner on several occasions that he is only interested in the marriage because he can benefit from Petitioner's United States citizenship. The Respondent has told Petitioner categorically and clearly that the parties need not reside as husband and wife when Respondent is granted citizenship. Respondent also added that when he arrives in the United States of America, he will find alternate accommodation. This gives the Petitioner the impression that it is because of the U. S Citizenship that Respondent is eager to make the marriage work for him to achieve his intended goals. All the above mentioned show that the marriage has truly broken down beyond reconciliation. Petitioner also attached Exhibit A5, financial transactions which prove that she was indeed taking care of Respondent during their marriage). In the case of Kotei vs Kotei 1974 GLR page 172 the Petitioner married the Respondent in 1962. They had two children and they resided in the United Kingdom but returned to Ghana in 1967. The Petitioner was posted to Kumasi in 1967 and as he had no suitable accommodation for the Respondent and the children they stayed in Accra. The Petitioner visited the Respondent only twice. In 1974 Petitioner filed for divorce alleging that he and the Respondent had not lived as man and wife for over six years and the marriage is broken down beyond reconciliation but the Respondent on the other hand asserted that she loved the Petitioner. It was held that the Petitioner was entitled to a grant of the dissolution. Sarkoedee J said “Once the facts are proved to bring the case within any facts set out in section 2(1) a decree of dissolution should be pronounced”. The case at hand as shown by Petitioner extensively points out various acts of unreasonable behaviour by Respondent coupled with the fact that the parties were not living with each other but only saw themselves every now and then during their almost five years of marriage. Section 1(2) of the Matrimonial Causes Act states that: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation” Petitioner has been able to prove that the marriage has broken down the Court will examine the 2nd leg ie the breakdown is beyond reconciliation. At paragraph 8 of Petitioner’s pleadings contained in her petition she states: “That all efforts to reconcile the parties have proved futile. The Petitioner further on two occasions called the Respondent to attempt a reconciliation all to no avail. The Parish Priest of the Christ the King Catholic Church who officiated the marriage has spoken to the Respondent to admonish him, the Petitioner’s mother has also attempted to reconcile the parties but the Respondent is maintaining that there are no problems between the parties”. The Court before it proceeded to take evidence from the parties tasked the lawful attorney to find out from the Petitioner if she intends to attempt reconciliation as Respondent had indicated that he was still in love with her and wants the marriage to work. Upon enquiry the answer was a firm NO. The Court notes that on a balance of probabilities the Petitioner herein has been able to introduce sufficient evidence that the facts alleged are more probable than its non-existence. The Petitioner has been able to prove that the marriage between herself and Respondent has broken down beyond reconciliation the Court will make appropriate orders for dissolution subsequently. ISSUE 2: Whether the parties should be made to bear their own costs. Petitioner prayed the Honourable Court in her petition that the parties be made to bear their own costs. Order 74 r1(1) of C. I. 47 states “that subject to this Order, the costs of and incidental to proceedings in the Court shall be at the discretion of the Court and the Court shall have full power to determine by whom and to what extent the costs are to be paid”. Petitioner initiated the action in Court for dissolution of the marriage between herself and Respondent. She has led evidence Exhibit A5 series to prove that in their marriage, she took charge of providing financially for Respondent who in his evidence in chief stated he is currently unemployed. Without belabouring the above issue, the Court does not find that Petitioner has been able to prove on a balance of probabilities that Respondent should bear his own costs. ANALYSIS/APPLICATION OF THE LAW TO THE FACTS AND EVALUATION OF THE ISSUES (RESPONDENT) Issue 1: Whether the marriage celebrated between the parties on 30th of July, 2011 has broken down beyond reconciliation. Respondent answer to the petition filed on the 22nd February, 2023 at paragraph stated that “The marriage between the Respondent and Petitioner has not broken down beyond reconciliation and the Respondent is advised and verily believes that other avenues for resolving their differences has not yet been exhausted. “On the basis of the foregoing I respectfully pray this Honourable Court to give the parties another chance of resolving their difference since this is a young marriage”. The Honourable Court adjourned the case for close to two months from the 23rd of March, 2023 to the 11th of May, 2023 aimed at giving the parties the chance to reconcile their differences but it proved unsuccessful. Respondent in his answer denied most of the averments contained in the petition of his wife. This Court will not re-submit all the law in support of the Respondent’s case since he has not cross-petitioned nor willingly agreed to the dissolution of the marriage. The Petitioner has already been able to prove that the marriage between the parties has broken down reconciliation. The Court will highlight a few aspects of Respondent’s evidence and facts. Respondent already stated attached. Q. How long in this 4 years 5 months have you stayed together? A. 3 weeks. She normally comes for a short stay. “The Court also makes reference to paragraphs of Respondent’s supplementary witness statements dated 29th of August, 2023. In reference to paragraph 14 of the witness statement of the Petitioner, indicating that I did not include her name in my late mother’s funeral brochure is denied. I remember vividly that I informed Petitioner before her name was included even before the final printout of my late mother’s brochure. I sent a copy of my late mother’s brochure to the Petitioner, even when my father was late; I made sure Petitioner’s name was marked in the brochure of my late father as my wife. Attached are the copied of the conversation between Petitioner and I and is hereto and marked as Exhibit “R. N. A. L 1’series”. After meeting with my family members, it is evident that my marriage with the Petitioner has broken down beyond reconciliation and I pray this Honourable Court to dissolve the marriage between Petitioner and me. That is all I have to say”. It is abundantly clear from the facts and the evidence that the couple’s marriage though mostly spent apart was fraught with numerous problems and they themselves have come to the realisation that they are incompatible as a couple. Their best option is to go their separate ways for the sake of their own sanity. In their case, absence did not make the heart fonder. Issue 2: Whether or not the Respondent is to bear his own costs. As discussed previously, the Petitioner initiated this action and Respondent though not in agreement that the marriage has broken down beyond reconciliation by supplementary witness statement told the Court that after consultation with his family, he has agreed to the dissolution of the marriage. Respondent should not be made to bear the cost of the litigation. See Order 74(1) of C. I.47 (Supra) By Court: After a careful evaluation of the facts and analysis of the evidence on record, the Court finds that the marriage between the Petitioner, Maisha Adzo Hodari-Okae and the Respondent, Richard Nunoo Agbolulu Lawson has broken down beyond reconciliation. The Court makes the following orders: a) That the marriage between the parties be dissolved by order of the Court day the 8th day of December 2023. b) The Court further awards costs of ¢15,000 to the Respondent, Richard Nunoo Agblulu Lawson. The marriage certificate is hereby cancelled. Petitioner Lawful Attorney present Respondent Present Lord Delvin Essandoh with Maxwell Kwaku Torgbui and Cynthia Ademadziku for Petitioner Present. (SGD) H/H KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE 18