QUAIGRAINE VRS LOKKO (A8/26/22) [2023] GHADC 921 (22 December 2023)

CORAM: HER WORSHIP NANA ABENA ASOH OWUSU-OMENYO (MS.), MAGISTRATE, DISTRICT COURT ‘1’, KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA 22ND DECEMBER 2023 SUIT NO: A8/26/22 } PETITIONER } RESPONDENT REBECCA LOVE QUAIGRAINE ACCRA VRS ADOLPHUS F. GIFFORD LOKKO ACCRA JUDGMENT On the 23rd October 2004, the parties were married at the International Central Gospel Church, Christ Temple, Abossey Okai. Their union was is blessed with two children. CASE OF THE PETITIONER On the 21st February 2022, the petitioner filed this amended petition to amend her original petition filed on the 4th October 2021 for a dissolution of her marriage. The basis of her prayer for dissolution is unreasonable behaviour on the part of the respondent. She says the respondent subjected her to emotional, physical and sexual abuse which forced her to leave the shores of Ghana. She further says that when she was forced to leave Ghana, she left their children with her parents and the respondent never bothered to visit them neither did he ever maintain them even when she was in Ghana. The respondent subsequently begged her to return to Ghana and when she returned, she was met with exactly what she left behind. To add insult to injury, the respondent continually denied her conjugal rights but was happy to give it to outsiders. She avers further that although she set up various companies with the respondent, he never allowed her to be involved in the running or any activities of the companies before their collapse. In view of these problems, she says the parties have not lived together as husband and wife since 2021 after she vacated the matrimonial home and all attempts to settle their differences by family and friends have proved futile. She thus prays the following reliefs: i. ii. iii. That the marriage celebrated on the 23rd October 2004 between the parties be dissolved. That the petitioner be granted custody of the two issues of the marriage. That the respondent be made to provide accommodation. Maintenance of Two Thousand Ghana Cedis (GHC2,000) monthly, education and health expenses of the children. iv. The respondent be made to pay financial provision in the sum of One Hundred Thousand Ghana Cedis, (GHC100,000). v. That the registrar of Companies be ordered to strike out the petitioner’s name and details from the companies underlisted and the record of the said companies listed be amend to reflect the changes. vi. A declaration that the plot of land located at Dodowa purchased by the petitioner is the sole property of the petitioner. LIST OF COMPANIES a. Index Commodities Limited. b. Index Logistic Limited. c. Index Africa Holding Limited. d. Index Dynamins Limited. e. Index Analytics Limited. f. Index Money Lending Limited. CASE OF THE RESPONDENT The respondent filed his response to the petition on the 22nd April 2022. He essentially denied all the claims of unreasonable behaviour made against him. His rendition of events was that, he indeed for a period was unable to have conjugal relations with the petitioner because the business he ventured into with the permission of the petitioner collapsed and he was consequently indebted to over two thousand clients. That this was worsened by the constant accusations of infidelity from the petitioner. He says the intention was never to torture the petitioner. Respondent denies never looking after the children as there were periods when the petitioner was away for work and he single handedly looked after the children. That since the inception of the marriage both parties have borne the financial responsibility of the home equally and takes exception to being called irresponsible. The respondent thus cross- petitioned for a dissolution of the marriage based on unreasonable behaviour on the part of the petitioner. The particulars of unreasonable behaviour is that the petitioner left the matrimonial home when the parties had no dispute, that the instant petition is a time when the respondent needs her most and it shows little commitments to their family. That the petitioner has tarnished his image by calling him a thief, fraudster, irresponsible and selfish. COURT ANALYSIS This is a matter that has travelled quite a bit. A reading of the proceedings and the processes on the court docket show that there was a break for parties to attempt settlement with their church, which I believe failed. There is also a copy proposed terms of settlement which was not signed by the parties because they were unable to come to a singular agreement to regulate the ancillary issues. I will thus make final orders based on the evidence on record. Section 1(2) of the Matrimonial Causes Act, 1971(ACT 367), states that the sole ground for the dissolution of a marriage shall be that the marriage has broken down beyond reconciliation. To prove that a marriage has broken down beyond reconciliation, the petitioner should establish the existence of one or more of the factors set out in section 2(1)(a)-(f)of (ACT 367), as existing in their marriage. In the instant matter, the respondent by his cross-petition has also assumed this obligation. This was position of the law was beautifully summarized in the case of Winterfield v. Bradnum (1878) 3 Q. B. D. 324 at p. 326, C. A., where Brett L. J stated “A cross-petition like a counterclaim is in my view, to all intents and purposes an action by the respondent against the petitioner. It is an independent and separate action.” The petitioner by her petition wishes to rely on unreasonable behaviour in accordance with section 2(1)(b) of (ACT 367), the said provision reads: “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. She is to by her evidence show that the behaviour of the respondent is such that she cannot reasonably be expected to continue on the marital sojourn with him. In the case of ANSAH V. ANSAH [1982-83] GLR 1127 the court stated the test for unreasonable behavior as “whether the petitioner could reasonably be expected to live with the respondent in spite of the latter's behavior”. The petitioner by her evidence avers emotional, physical, and mental abuse on the part of the respondent. The petitioner also alleged the respondent refused her conjugal relations. In respect of the matters relating the conjugal relations, the respondent in his response confirms same but attributes same to stress and trauma. There is thus no doubt that this specific state of affairs existed. The law is very clear, a willful refusal to have sexual intercourse to constitute unreasonable behavior. See the case of Hughes v. Hughes 1973 2GLR @ 342. In respect of the allegations of abuse the respondent denied same in his response to the petition, but never appeared in court to cross- examine the petitioner as to the veracity of her claims neither did he file a witness statement or appear in court when the trial started, although various hearing notices were served on him. The law of evidence stipulates that where an averment is made and it is not challenged in anyway then it is admitted as the uncontroverted evidence. See the cases of Fori v Ayirebi [1966] GLR 627 and Takoradi Flour Mills v Samir [2005-06] SCGLR 882. Based on the evidence presented by the petitioner, I am of the view that her marriage to the respondent has broken down beyond reconciliation. The respondent’s cross-petition on the other hand will not see the light if day as he did not appear in court to prosecute his claim. His cross-petition must thus fails. CUSTODY AND MAINTENANCE Whilst the petitioner prayed for custody of the children of the marriage, the respondent prayed for access. Upon assessing the evidence on record and in accordance with section 22(1) of ACT 367, I will award custody of the children to the petitioner with reasonable access to the respondent. FINAL ORDERS 1. The marriage celebrated between the parties on the 23rd October 2004, is hereby dissolved and marriage certificate with number ICGC 47-04 is hereby cancelled. 2. Custody of the two children of the marriage is hereby awarded to the petitioner with reasonable access to the respondent. He is to have them on weekends and holidays. 3. Respondent is to maintain the children with an amount of Two Thousand Ghana Cedis a month for both children. Respondent is to be responsible for all expenses consequential to the education of the children. 4. Parties are to share expenses consequential to the education of the children. The respondent is to pay the school fees whilst the petitioner pays hostel fees where applicable and caters for other educational expenses. 5. Parties are to jointly provide accommodation for the children in the following ratio: Respondent is to bear 70% of the total accommodation bills whilst the petitioner bears the rest of the 30%. 6. Respondent is to pay the petitioner a lump sum alimony of Fifty Thousand Ghana Cedis. 7. The name of the Petitioner is to be struck off the following companies as a member and director: i. ii. iii. iv. v. Index Commodities Limited. Index Logistics Limited. Index Africa Holdings. Index Dynamics Limited. Index analytics Limited. 8. The Plot of land owned by both parties is hereby settled on the petitioner. 9. Each party is to bear their own cost. NANA A. A. OWUSU-OMENYO (MS.), (MAGISTRATE) 6