Ackon Vrs Nyarko [2023] GHADC 650 (24 July 2023)

IN THE DISTRICT MAGISTRATE COURT TAKORADI MARKET CIRCLE HELD ON THE 24TH DAY OF JULY 2023 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ: SUIT NO. A6/ 11/ 2023 ERASMUS MENSAH ACKON -- PETITIONER H/NO. 8 DE GRAFT AFFUL AVE

ANAJI TAKORADI VS DOROTHY NYARKO -- H/NO. PT 153 WEST ANAJI

TAKORADI

JUDGMENT

RESPONDENT The petitioner petitioned for dissolution of the marriage contracted between him and the respondent on the 16th day of May 2019. He tendered the said marriage certificate in evidence as exhibit A. The petitioner alleges the marriage between him and the respondent has broken down beyond reconciliation. The respondent after been served with the petition filed an answer to same where she cross petition for dissolution of the marriage contracted between her and the respondent where she alleges the marriage between her and the respondent has broken down beyond reconciliation. The petitioners view for the aforementioned view that the marriage has broken down beyond reconciliation is that, he avers when he got married to the respondent, respondent was already pregnant with another man’s child. Respondent tried aborting the pregnancy which resulted in complications as such due to the said complications she did not have sexual intercourse with the respondent. The respondent started bleeding profusely and he took her to the hospital at the hospital he made the nurses there aware of the respondent attempt to abort the pregnancy therefore resulting in complications the respondent was attended to at the hospital and the pregnancy flushed out bas eon the scan accessed by the hospital. He still did not have sexual intercourse with the respondent un till the respondent was fit and

was cleared to have sexual intercourse. Petitioner avers, the respondent behavior towards their sexual life changed and sometimes becomes violent when he attempts to have sexual intercourse with her. He recalls at a point the respondent slapped him on the face when he wanted to have sexual intercourse with her. According to the petitioner the respondent always wants sexual intercourse at her own time but when he asks for same, respondent becomes violent. Petitioner further indicated, respondent became very cold towards the marriage and towards him as well. He further indicated he had three children in previous relationship before he got married to the respondent and expected the respondent to help him cater for the children but she refused although she was caring to the three kids before the marriage. The respondent stopped doing what she used to do before the marriage that is helping with her children and keeping the house. She sometimes goes out and leaves the kids behind to go and stay at his sister’s house and directs the kids to come there. Petitioner further indicated due to the respondent bad behavior the children always wanted to go to their biological mother. He indicated; due to respondents’ constant threat he moved his children out of the matrimonial home except the child he has with the respondent. He complained to the respondent fatherly figure who stood behind her

during the marriage but and respondent was called by the said father. Father the conversation with her father, the respondent called him to insult him. Due to the behavior of the respondent, he has decided to communicate with the respondent through text messages only due to her constant verbal abuse. According to him the marriage between them has broken down beyond reconciliation and both has decided to seek a decree of dissolution of the marriage. It is worthy of note that, the respondent although filed answer and cross petition for dissolution of the marriage elected not to give any evidence in this matter. The evidence of the Petitioner therefore needs no further proof in the absence of any evidence to the contrary on record. In FORI V AYIREBI 1966 GLR 627 SC, it was held at holding 6 of the head notes that: “Where a party had made an averment and that averment was not denied, no issues was joined and no evidence need to be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon, he need not call further evidence of that fact.” See also the cases of TAKORADI FLOUR MILLS V SAMIR FARIS (2005-2006) SCGLR 882. On the 1st day of June 2023, the parties filed terms of settlement, in respect of the ancillary reliefs. The dissolution of marriage is one that cannot be settled as I am bound to take evidence to satisfy myself

that the marriage between the parties has broken down beyond reconciliation in accordance with sections 1 and 2 of the MCA. To buttress this point, in the case of AMEKO V AGBENU (2015) 91 GMJ. A circuit court Judge failed to take evidence before dissolving the party’s marriage because he was convinced by the pleading of the parties that the marriage had broken down beyond reconciliation on Appeal to the Court of Appeal it was held that: “The failure by the trial circuit court judge to take evidence in the matter before dissolving the marriage is contrary to sections 1 and 2 of the Matrimonial Causes Act and it is therefore a nullity. In such matters time does not run and could be attacked and set aside at any time as void. The order made by the circuit court on the 5 September, 2013 is hereby declared a nullity and same is hereby set aside.’’ Again, in MARIAM PARTEY VS WILLIAM PARTEY (2014) 71 GMJ 98 CA @ 122 the court of appeal speaking through KUSI- APPIAH JA stated “It appears to us that from the tenor of sections 1 and 2 of Act 367, parties to divorce proceedings cannot file terms of settlement or consent judgment that the marriage has broken down beyond reconciliation. The only procedure prescribed by law for the dissolution of marriages by the court is provided by section 2(2) and (3) of Act 367, that the court must inquire into and satisfied on all the evidence led

before it that indeed the marriage has broken down beyond reconciliation. The learned trial judge therefore committed a grave error when he breached the mandatory provisions of the Matrimonial Causes Act 1971 Act 367, that is section 2 which is substantive Act of parliament. We must hasten to add that this was a fundamental breach which goes to the root of the action and therefore rendered the whole proceedings null and void and of no legal effect whatsoever.” Cognizance of the above position of the law, I did not accept the terms of settlement as consent judgment. I rather took evidence to determine only the issue of dissolution of marriage between the parties as raised supra. Per section 1(2) of the Matrimonial Causes Act, Act 367 hereafter referred to as the MCA, the sole ground for the grant of divorce is that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation, any of the facts enumerated under section 2(1) (a) to (f) of the MCA must be proved by the petitioner and or the respondent in their respective evidence. This was explained in the case of MENSAH V MENSAH 1972 2GLR 198-209 by HAYFRON BENJAMIN J (as he then was) at page 202 where the respected judge said “From the relevant sections of the Matrimonial Causes Act 1971 Act 367 namely sections 1(2) and 2(1) and (3) the court ought to grant

a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory on the petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation obviously on all evidence. Having establish these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation.” The principle has always been that a court hearing a petition for divorce is under the duty to carefully consider all the evidence before it as a mere assertion by one party that the marriage has broken down. The court must consider whether the evidence adduced situate the case of the petitioner and respondent (if the respondent cross petitioned for dissolution of the marriage) within any of the grounds in section 2 of the MCA. I have analyzed and perused the evidence proffered by the petitioner and its undisputed by the respondent as such the court finds that the marriage between the parties has broken down beyond reconciliation. I accordingly decree a dissolution of the marriage contracted between the parties as sought in their petition and cross- petition respectively. In respect of the ancillary reliefs, the parties filed terms of settlement on the 1st day of June 2023. I adopt the terms of settlement as consent judgment of the parties in respect of the ancillary reliefs to the effect that, 1. The Petitioner shall maintain the child of the marriage at GHC800.00 a month until the child is of age.

2. The Petitioner shall pay the educational expenses of the child.

3. The Petitioner shall pay the medical expenses of the child.

4. The Petitioner shall rent a suitable accommodation for the child at GH¢300,00 per month for a period of 4years.

5. That the Petitioner shall pay a sendoff compensation of GH¢25,000.00 to the Respondent 6. There will be no order as to cost. H/W CATHERINE OBIRI ADDO ESQ ( M A G I S T R A T E )

REPRESENTATION PETITIONER- EBO DONKOR ESQ RESPONDENT – PHILIP FIIFI BUCKMAN ESQ 6