Gomado Vrs Ayitey [2023] GHADC 192 (14 July 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT N. A. M. A. NSAWAM ON 14TH DAY OF JULY 2023 BEFORE HER HONOUR SARAH NYARKOA NKANSAH

CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE SUIT NO. A4/16/22 -------

PETITIONER -------- RESPONDENT

COMFORT GOMADO

OF AFUTU PARK

NSAWAM

VRS

FRANCIS AYITEY

OF AHODWO

NSAWAM PARTIES: PETITIONER PRESENT. RESPONDENT ABSENT. NO LEGAL REPRESENTATION.

JUDGMENT The Petitioner commenced the present action in this Court praying for the following reliefs: a. An Order for dissolution of Ordinance Marriage between Petitioner and Respondent dated 25th June, 2001. b. Determination of custody of the children with reasonable access to parties by the Court. Page 1 of 7 c. Monthly Maintenance order of GH¢800 against Respondent for the upkeep of the two (2) Children, be responsible for their school fees, medical care and their clothing including any further order or orders by the Court. d. An order restraining Respondent to desist from subjecting the children to verbal and physical abuse whatsoever. The Respondent in the case was duly served to attend Court; but for no just cause known to the Court the Respondent elected to absent himself from the proceedings. In view of same, the Court proceeded under Order 25 of the District Court rules C. I.

59. Accordingly, Petitioner was directed to prove her case. Order 25 r 1(2) (a) provides; “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim” In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A Court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” PETITIONER’S CASE Page 2 of 7 It is the case of the Petitioner that she got married to Respondent on 25th June, 2010 under the ordinance and that the marriage is blessed with two children who are 18 years and 14 years respectively. Petitioner continued that she had to move out of the matrimonial home in 2013 due to the severe beatings meted to her by the Respondent. All attempts by family members to resolve the issues between them have proved futile. The Petitioner asserts that she moved back in with the Respondent in 2019 but was again subjected to severe beatings and was thrown out of the house by the Respondent. According to the Petitioner, there has not been no sexual relations between the parties for the past

two years. The Petitioner added that the Respondent has refused to maintain the children and also that the marriage has broken down beyond reconciliation. Petitioner prayed the honourable Court to grant her reliefs. In the circumstance the issues that falls for determination are: i. Whether or not the Respondent has behaved in a way that the Petitioner cannot be reasonably expected to live with the Respondent. ii. Whether or not the marriage has broken down beyond reconciliation iii. Whether or not the Respondent is liable to maintain the children of the marriage. The law on dissolution of marriages is laid out in the Matrimonial Causes Act, 1971 (Act 367). Sections 1(2) and 2(1) (3) of Act 367 provides as follows: "1(2) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Page 3 of 7 2(1) 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 facts:- ... (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 differences. (3) notwithstanding that the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." Page 4 of 7 It has been adduced at the trial that the Respondent subjected the Petitioner to physical and verbal abuse. That on one occasion Respondent threw the belongings of the Petitioner out at night. At page 123 of the book, “At a glance! The Marriages Act and the Matrimonial Causes Act Dissected by Mrs Frederica Ahwireng-Obeng, the

learned writer on unreasonable behaviour stated; “Unreasonable behaviour has been defined in English law as conduct that gives rise to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger”. The above statement reiterated the position of the law in GOLLINS v. GOLLINS [1964] A. C 644. The learned writer added that the principle of law is that, the bad conduct complained of must be grave and weighty and must make living together impossible. It must also be serious and higher than the normal wear and tear of married life. The continuous physical abuse of Petitioner by Respondent is clearly higher than the normal wear and tear of married life. It is obvious by the action of the Respondent that he has behaved in such a way that the Petitioner cannot reasonably be expected to live with Respondent as Husband as wife. I find unreasonable behaviour on the part of the Respondent. Per her witness statement the Petitioner states as follows at paragraph 13; “(13). The marriage between the parties has broken down beyond reconciliation as attempts by well-respected personalities to settle the issues have all failed.” Page 5 of 7 As evident on the face of the evidence adduced at the trial, the parties have irreconcilable differences. With respect to maintenance of the children, section 6 of the children’s Act, 1998 (Act 560) provides that no parent shall

deprive a child his welfare whether the parents of the child are married or not or whether they continue to live together or not. Section 47 of Act 560 also provides that a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. It is not in doubt that the respondent is the father of the children. In view of same the Respondent is required by law to contribute towards the maintenance of the children. I find that the Respondent is liable to maintain the children of the marriage. I have stated earlier that, the Respondent was not present to cross-examine the Petitioner at the trial. In Quagraine v. Adams [1981] GLR 599 it was held that, in a situation where a witness testifies and his opponent fails to cross-examine him, the Court may consider the witness’s testimony as admitted by his opponent. The Court has carefully considered the evidence adduced at the trial. Having found unreasonable behaviour and irreconcilable differences, the Court is satisfied that the marriage has broken down beyond reconciliation. In consideration of the same, I hereby enter judgment as follows: Page 6 of 7 The marriage celebrated between the parties on the 25th of June, 2001 is hereby dissolved. i. The Respondent shall pay

GH¢20,000.00 as financial settlement to the Petitioner. ii. The Respondent shall maintain the children of the marriage by paying GH¢800.00 per month into Court by the first working day of every month. iii. The Respondent shall pay the school fees and educational expenses of the children of the marriage. iv. The Respondent shall pay the medical bills of the children of the marriage. v. The Petitioner shall register the issues of the marriage under the NHIS and renew same at all material times. vi. The Petitioner shall provide adequate clothing for the issues of the marriage at all material times. vii. No order as to costs. ………………..………………………… H/H SARAH NYARKOA NKANSAH

CIRCUIT COURT JUDGE SITTING

AS ADDITIONAL MAGISTRATE 14/07/2023 Page 7 of 7