OFORI VRS DANKWAH (C5/45/22) [2023] GHACC 803 (8 December 2023)

IN THE CIRCUIT COURT “B”, TEMA, HELD ON FRIDAY THE 8TH DAY OF DECEMBER, 2023, BEFORE HER HONOUR KLORKOR OKAI-MILLS, CIRCUIT COURT JUDGE SUIT NO. C5/45/22 BENITA OFEIBEA OFORI ----- PETITIONER VRS. EFFORT KOJO DANKWAH ----- RESPONDENT PARTIES ABSENT OKYEAME YANKSON, ESQ. FOR THE PETITIONER PRESENT DANIELA KWARTENG HOLDING BRIEF FOR JAMES ENU, ESQ. FOR THE RESPONDENT ABSENT JUDGMENT FACTS: Lord Denning in his book, “Landmarks in the Law” Butterworths, 1954 writes at page 176 “on change in attitude of the British people to Divorce” as follows: “There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can until at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The above quotation, is applicable in equal measure to the Ghanaian society presently and the facts of the instant case leads one to wonder how loose that piece of string was tied. One would be forgiven for thinking this is a John Grisham novel, but unfortunately the facts as presented actually happened. On 7th October, 2011, a school teacher married a sales executive of an airline company at the Tema Metropolitan Assembly, Tema under Cap 127 of the marriage act. As is naturally expected of couples, the wife became pregnant as they cohabited at Community 11, Tema. One night, as the couple slept, in their locked bedroom, the lady woke up in pain and the husband rushed her to the hospital, thinking she was in labor as he saw blood. A closer examination revealed that the seven-month pregnant mother had suffered a gunshot wound in her chest. Though mother and baby were saved, the lady as a result of the injury became paralyzed and she never returned to her matrimonial home upon her discharge from the hospital. The husband was charged and later convicted of attempted murder. These facts of this case are uncontroverted. On 24th January, 2022, the wife, the petitioner, filed the instant petition for divorce alleging that the marriage celebrated between herself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. That the marriage celebrated between the petitioner and the respondent on 7th October, 2011 be dissolved, given as it has irretrievably broken down. b. An order granting full and total custody of the shared child of the marriage to the petitioner. Prior to this petition, there has been a previous court suit/proceeding in respect of the marriage which was instituted by the Respondent then, a divorce petition by the Respondent then with the suit number as C5/73/17. The said suit has been struck off the court’s register for want of prosecution. The petitioner subsequently applied to the court for leave to serve the divorce petition and notice to appear and all subsequent court processes on respondent via substituted service. The affidavit of support indicated that the parties have not lived together for the past 6 years, the petitioner suffered a gun shot and is paralyzed and is therefore not able to ascertain the whereabouts of the respondent. Same was granted. Respondent after being served failed to enter appearance and the matter was therefore set down for trial. Petitioner filed her witness statement on 1st June, 2022, after which respondent entered appearance. The respondent entered appearance and filed an answer on 7th July, 2022 in which he cross-petitioned as follows; a. An order for the dissolution of the marriage between the parties contracted on the 7th day of October, 2011. b. A declaration that Respondent is the father of the child, conceived and brought forth during the wedlock and an order for the Respondent to name the child. c. An order for reasonable access to the child of the marriage. In the petition and the answer to the petition for divorce, the parties leveled accusations and counter accusations against each other. Whereas the petitioner blames the breakdown of the marriage on alleged unreasonable behaviour and desertion on the part of the respondent, the respondent blames their marital woes on the unreasonable behavior of the petitioner, particularly that since their son was born, petitioner has kept the child away from the father and she has refused any financial provision he has offered to her and for more than 6 years now, they have not lived together as man and wife. THE CASE OF THE PETITIONER The petitioner testified that she has not heard from respondent for about six years or so and he has deserted the marriage and she has had to move from the marital home to live with her parents. In stating particulars of unreasonable behavior alleged by the petitioner on the part of the respondent, she averred that respondent has never shown nor taken any responsibility for the upkeep of the issue of the marriage since the child was born, so she has single handedly provided for the child. Her parents are the ones who support her in the care of her son. The petitioner further avers that the respondent engaged in extra-marital affairs and on one occasion in June 2012, she discovered that respondent had brought one of his paramours into the matrimonial home. Further to this, the petitioner accuses the respondent of sidelining her from the use of a car they jointly acquired and bizarrely, respondent only registered the car in his sole. Petitioner testifies that after it was confirmed at the hospital that she was pregnant and she informed the respondent, he seemed displeased about the pregnancy; respondent did not provide her with any support during the pendency of the pregnancy. Petitioner averred that on the night of 29th August, 2015, she sustained a gun shot wound as she and respondent slept alone in the room together. Petitioner testified that it was respondent, along with some other people who transported her to hospital. She adds that the marriage went from bad to worse after this incident as she became wheel-chair bound and the respondent made no effort visit her or the issue of the marriage. In addition, respondent, who has been charged with her attempted murder and was at the time undergoing criminal proceedings in court. According to her, for more than six years, there have not been any sexual intimacies between them as they have lived apart and there has been no communication between them. The petitioner further avers that various attempts made to reconcile the differences between the parties have proved futile. Petitioner testified that she cannot go through such pain, stress and anxiety given respondent’s unreasonable behavior towards. Further in the cross-examination of petitioner by counsel for respondent, the following also ensued: Q: You can confirm to this court that whilst you were on admission at Korle- Be teaching hospital, your husband came there every morning to see you A: It was not every morning. It was just the first few days when the issue was fresh. Q: On each of these days that your husband visited you, you both did your morning quiet time devotions together? A: My Lord, that is very untrue. Q: And you can confirm that all the medical bills that came with your admission was borne by your husband? A: Very untrue my Lord. Q: You see, I suggest to you that, your statement at paragraph 1 of your evidence in chief that it is the respondent who deserted you is not true. A: Q: It is very true, my Lord. I also suggest to you that it is you who deserted the matrimonial home and your husband when you failed to come home, after you were discharged without knowledge of the respondent. Petitioner’s mother also submitted a witness statement on behalf of the petitioner but she was not available to be cross-examined on same so the court did not give any weight to her witness statement. THE CASE OF THE RESPONDENT The respondent denies the allegation of unreasonable behaviour and blamed the petitioner for the breakdown of the marriage whiles alleging adultery, desertion and separation for more than five years. The respondent avers that the petitioner’s behavior has caused him much anxiety, distress and embarrassment. The respondent further states that in 2015, following a gun incident in which the petitioner was injured, it was due to his timely intervention that the petitioner’s life was saved and that subsequent from being discharged from the hospital, petitioner with the aid of her family has moved to a secret location so he cannot access her. According to him, in 2016 when the petitioner showed up at the matrimonial home to pack her things, he begged her to stay but she did not agree. Respondent denies that the parties have ever argued during the subsistence of the marriage and has also never been abusive to the petitioner. Respondent testified that given that he worked closer to home, he would always get home and do the household chores including washing petitioner’s clothes, sweep the compound, wash dustbins amongst others. He further asserted that he supported petitioner throughout her pregnancy and was elated at the news of the pregnancy because based on the fact that they had struggled to conceive, he petitioner had had to cover up for petitioner amidst insults from petitioner’s own kinsmen over petitioner’s inability to bear children. Respondent testified that since the baby was born, petitioner has prevented him from having any contact with the child and he has been denied the opportunity of naming the child to the extent that the child does not bear his name. The respondent maintains that upon his frustration and inquiry from petitioner as to why she had denied him access to the child she informed him that the child is not his. He states that petitioner has also resisted his demand for a paternity to confirm or deny otherwise. The respondent further asserts that the parties have not lived as man and wife sine 2016. All attempts by both family and friends to reconcile the two parties Petitioner filed a reply and answer to respondent’s answer and cross-petition denying the averments made by respondent and praying the court to dismiss the reliefs prayed for by respondent and for the court to grant her reliefs as contained in her petition. ISSUE 1: Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. ANALYSIS Under section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to prove one of the six (6) facts set out in section 2(1) of Act 367, namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years, irreconcilable differences. Where a respondent also cross-petitions for divorce as in the instant case, the respondent bears the burden to prove the allegations contained in the cross- petition on a balance of probabilities. In the case of Donkor v. Donkor [1982-1983] GLR 1158, the High Court, Accra, per Osei-Hwere J, held that: “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3), which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation…the petitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.” The parties and their lawyers are also mandated to inform the court of all attempts at reconciliation and the court shall refuse to grant a petition for divorce if there is a reasonable possibility for reconciliation. See Section 2(3) of Act 367. In the case of Adjetey& Anor. v. Adjetey [1973] 1 GLR 216, the court held in its holding 2 that: “On a proper construction of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367), the court could still refuse to grant a decree even where one or more of the facts set out in section 2 (1) had been established. It was therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage had broken down beyond reconciliation would not be enough.” In the instant case, the petitioner and the respondent in their evidence relied on the fact that for more than 6 years preceding the presentation of the petition for divorce; they had not lived as man and wife. To succeed under fact 2 (1)(e), the parties are required to prove that for a continuous period of five years immediately preceding the presentation of the petition for divorce, they had not lived together as husband and wife and they have each ceased to recognise the marriage as subsisting. The law does not require proof of any matrimonial offence and there is no need to establish blame. Proof of not having lived together as husband and wife for a continuous period of at least five (5) years coupled with the inability of the parties to effect reconciliation to resume cohabitation as husband and wife suffices. I am fortified in this view by the case of Kotei v. Kotei [1974] 2 GLR 172, where the High Court per Sarkodie J, espousing on section 2(1) (e) of the MCA held that @ 175-176 “Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage”. The court further held at page 176 as follows; “There must be a total breakdown of the consortium vitae. Mere physical separation is not sufficient; a petitioner has to prove not only the factum of separation but also that he or she has ceased to recognize the marriage as subsisting and intended never to return to the other spouse… Therefore it seems the state of mind of the parties needs to be considered, that is, whether they treated the marriage as at an end. It may not matter whether the state of mind of one of the parties was not communicated to the other.” The petitioner testified and tendered in evidence the marriage certificate admitted and marked as Exhibit “BO”, evidencing that the parties got married under the Marriage Ordinance Cap 127 on the 7th day of October, 2011 at the Tema Metropolitan. The petitioner in her testimony states that for more than six years, the parties have not lived in the same matrimonial home, as following a gunshot injury in 2015, and in which her husband is a suspect then in the matter, relocated to another location in Accra for fear of her life. Under cross examination by counsel for respondent on issue as to whether the respondent deserted the matrimonial home as petitioner asserted in her witness statement at paragraphs 18 and 21, the following ensued: Q: You can confirm to this court that you no longer live at the said house? A: Yes please. Q: The last time you visited the house, that is the matrimonial home was 2016. Is that correct? A: Yes please. Q: And that was the year after you were discharged from the hospital after the gun incident? A: No please, it was not a year. Q: Can you tell this court the length of time time between the time you were discharged from the hospital as to when you last visited the matrimonial home? A: It was within months – possibly 8 months even though I didn’t know the specific month. Q: And the last time you visited the matrimonial home, you went along with some relatives specifically, your mother, step father, brother and uncle. Is that so? A: Yes please. Q: And when you did go to the matrimonial home with the said relatives, it was to pack your things out of the matrimonial home. A: Yes please. Q: Now before the gun incident, you were in the matrimonial home or lived there. Is that so? A: Yes please. Q: And when you were discharged from the hospital, you did not return to the matrimonial home until you came to pack your things. Is that correct? A: Yes please Q: And ever since you packed your things from the matrimonial home, you have not returned till date? A: Yes please. Under further cross examination of petitioner by counsel for respondent, the following ensued: Q: When you were discharged from the hospital, where did you go? A: I could not return to his house because it was unsafe for me so my parents and relatives decided that I stay with an uncle in Accra. Q: Prior to going to Accra, did you inform the respondent who was your husband that you are going to stay in Accra? A: No, I did not because it was not safe for me to. Petitioner, in her witness statement attached Exhibit BO1 as evidence of her assertion that respondent never took responsibility of the child as he claimed in a previous divorce petition filed by him that they have one issue but because petitioner committed adultery, he is not certain the child is his. During cross-examination, counsel for respondent tendered through the petitioner, Exhibit 1, opening address of the counsel for the state in the case, The Republic vrs Effort Dankwah where the respondent was on trial for the attempted murder of the petitioner. During examination of petitioner who was prosecution’s PW1, the following ensued: Q: Do you have anything else to tell the court? A: After the incident, getting to the hospital because my parent felt insecure. They didn’t know where everything was coming from, they had to take me to a place where no family member or friends knew so we could unravel where the shots was from since we got to know it wasn’t from the window as the accused claimed or from the ceiling. After that, I was there for three months and then I came back to a family friend at Tema where I also went through lots of medical complications because I had lost blood during the shot and also during the CS so it was life threatening but I was able to go through it all…” Upon further examination of Petitioner, as PW1, the following ensued: Q: Did he send you money? A: Yes, he has sent money three times for the past 4 years and I could even state the amount he sent us. The very first time which was in 2016 January, he sent GHC300.00 for myself and the baby for the baby’s clothing and feeding and for myself who cannot walk. The second time, which was in June 2017, he sent us GHC200.00 and the last one was in 2019 May. He sent GHC 100.00. During cross-examination of respondent by counsel for petitioner, the Following ensued: Q: Now after they discharged the petitioner from the hospital and after the gun shot incident, you were informed by the petitioner and her family that it was unsafe for her live in the matrimonial home giving everything that had happened. Is that correct? A: Respectively, neither petitioner nor her family member informed me of any situation of sort. Q: I put it to you that the petitioner and her family informed you that it was unsafe for the petitioner to live in the matrimonial premises. A: No, my Lord. Q: I also put it to you that, it was subsequent to that that she was sent to her uncle’s place in Accra so as to continue with her recovery. A: No, my Lord. I rather called the petitioner to find out where exactly she was and she said emphatically that she would not be able to disclose to me personally. Subsequent to that, my mother in law called me personally to inform me of the reason why the family members are not willing to disclose the location to me is that it is not safe if they disclose it to me and I want to visit the petitioner, those who attempted to kill petitioner may trace their hideout and is why they were not willing to disclose her location to me. Respondent called one witness, Francis Kwasi Dankwah as his witness. He testified that he and petitioner paid the medical bills of the petitioner and submitted some receipts covering the first two weeks of petitioner’s hospitalization at Korle-bu. From the evidence led by the petitioner and the respondent, the parties are agreeable that for a continuous period of more than five years preceding the presentation of the petition of divorce, they had not lived as man and wife. The parties made accusations and counter accusations of unreasonable behavior. As stated above, to succeed under fact 2(1)(e) of Act 367, there is no need to establish a matrimonial offence on the part of either party. All that is required is that the parties have not lived together as man and wife for a continuous period of at least five years preceding the presentation of the petition. During the pendency of the divorce proceedings, the respondent was convicted of the attempted murder of the petitioner in the High Court was sentenced to 39 years. From the evidence led, there is no doubt in my mind that the parties have lived separately for more than five years immediately preceding this petition and it is not because it was an agreed arrangement – it is because they do not want to continue to live as a married couple. Additionally, it can be inferred from the evidence led by the parties and their conduct that there is a complete cessation of consortium vitae and the parties have not evinced an intention of reconciling their differences to resume cohabitation. To my mind, based on the foregoing, the marriage has broken down beyond reconciliation. ISSUE 2: Whether or not the respondent is the biological father of the only child of the marriage. During the pendency of the suit, the court, the respondent applied to the court to order a DNA test to be conducted on the issue of the marriage to determine paternity as there were allegations by respondent that petitioner had intimated on some instances that he was not the father of the child. On 2nd February, 2023, the court ordered for a DNA test to be conducted. The DNA test was carried out by Synlab MVZ Munich, Germany, but facilitated by Synlab Ghana Limited. The DNA result was opened in the presence of both counsels for the parties on 25th August, 2023. The report carried the following result: Nana Kwame (Child 1) The molecular genetic option of parentage regarding the following questions was performed impartially and in all conscience:  can paternity of Mr. Effort Dankwah to the child Nana Kwame be excluded which plausibility of paternity is calculated in case of non-exclusion? Biostatistical calculation: Mr. Effort Dankwah is to be excluded from paternity to the child Nana Kwame according to the results of the microsatellite analysis. The microsatellite analysis shows that Mr. Effort Dankwah and Nana Kwame are not related to each other. Conclusion “Paternity of Effort Dankwah for Nana Kwame practically excluded.” Under Section 32 (1) of the Evidence Act, 1975 (NRCD 323), a child born during the marriage of the mother is presumed to be the child of the husband of the child’s mother at the time of the birth. The presumption applies to both monogamous and polygamous marriages. Thus, once a child is born during the subsistence of the marriage the respondent is presumed to be the father until there is evidence to rebut it. In the instant case, as discussed supra, there are two scientific reports all indicating that the respondent is not the biological father of the child in issue. In court proceedings where the paternity of a child is in issue, DNA testing has been found to be a reliable means of determining the issue. In the case of Asante (No. 1) v. the Republic (No.1) [2017-2020]1 SCGLR 132 @ 144, underscored the necessity for DNA testing not only in family suits but in criminal proceedings as well when it stated: “DNA is derived from the chemical substance Deoxyribonucleic Acid (DNA) that is used to encode the genetic information in living organisms. The usual objective of forensic DNA analysis is to detect variations in the genetic material that differentiate one individual from another. Its accuracy is rated very high and it is considered reliable”. The High Court in the case of Gloria Odartey Lamptey V. Nii Odartey Lamptey (2017) JELR 107695 (HC) High Court · BDMC 454/2013 delivered on 14 June 2017, stated that DNA is an accurate result to prove the paternity of a child. The court in that case relied on it to exclude the respondent as the father of the three issues of the marriage. In the case of Hume v. Hume McAuliffe [1965] Times, March 3 CA, a finding of adultery was made against a wife on the evidence that she had given birth to a child of whom blood tests established that the husband could not be the father. In the instant case, as shown in the analysis of the paternity issue, supra, the DNA test results has excluded the respondent as the biological father of the child in issue. From the result, the respondent has successfully rebutted the presumption that the child who was born during the marriage to the petitioner is the child of the respondent. I therefore hold that the respondent is not the biological father of the child by name Sterling Yirenkyi. Based on the fact that petitioner got pregnant during the pendency of the marriage, the DNA results as captured above therefore is a strong indication that petitioner did commit adultery during the pendency of the marriage which is also one of the grounds for divorce. The respondent did allege that petitioner, after the birth of the child confessed to adultery on her part to him and indicated that it was the reason she kept the child away from him since his birth. In his application for a DNA test, the respondent stated that his main reason for applying for the test is to confirm paternity to determine what role if any he would play in the child’s life: “I pray this Honorable Court to grant me this order so that once confirmed that the child of the marriage is mine, I, as well as members of my extended family, can joyously and with free minds contribute to the growth and nurturing of the child of the marriage.” The import of respondent’s prayer is that once it is confirmed that he is the father, it is upon that that he would be willing to play a role in the child’s life. The facts do indicate that respondent has not played any role in the child’s life; infact he has not seen the child before and respondent has not stated that he is willing to take care of the child regardless of whether he is the father or not. Consequently, given the fact that DNA has confirmed that he is not the father the child, then presumably, the respondent is not interested in contributing to the growth of the child. The respondent is not liable for the care of the child and he is at the same time, not entitled to any access to the child. Given the above facts, it is reasonable to conclude that based on the fact that respondent is serving jail time for the attempted murder of petitioner upon conviction by a court of competent jurisdiction and from the DNA results which indicate that petitioner got pregnant by another man during the subsistence of the marriage and therefore respondent cannot be biologically responsible for the conception of the child, meaning respondent has successfully proved his allegation of adultery against the petitioner, this marriage, if it was on life support, has definitely been taken off the ventilator and it has died; certified dead. The possibility of it being resurrected is slim to none. The parties also agree that various attempts made by well meaning family members and friends to reconcile their differences have proved futile. The breakdown of the marriage beyond reconciliation is also evidenced by the fact that the respondent did not oppose the dissolution of the marriage but cross- petitioned for divorce. CONCLUSION On the totality of the evidence led, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition and the cross-petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the Ordinance marriage celebrated between the petitioner and the respondent on the 7th day of October, 2011 at the Tema Metropolitan Assembly. 2. The petitioner shall present the original copy of the marriage certificate number RGM. 1369/95 to the Registrar of the court for cancellation. 3. The respondent is not the biological father of the child; request for an order for Respondent to name the child is dismissed. 4. Respondent’s request for a grant of reasonable access to the child is hereby dismissed. 5. The petitioner is granted full and total custody of the child in the marriage. 6. There shall be no order as to costs. H/H KLORKOR OKAI-MILLS (CIRCUIT COURT JUDGE) (SGD) 17