LAMPTEY VRS OFOLIQUAYE (C5/112/2023) [2023] GHACC 839 (10 November 2023)

IN THE CIRCUIT COURT 3 OF GHANA HELD IN ACCRA ON FRIDAY THE 10TH DAY OF NOVEMBER, 2023 A. D. BEFORE HER HONOUR SUSANA EDUFUL (MRS.) CIRCUIT COURT JUDGE SUIT NO. C5/112/2023 DOREEN ANNABEL NAA ODARLEY LAMPTEY PETITIONER JOSHUA OFOLIQUAYE OFOLIQUAYE RESPONDENT VS. PARTIES PRESENT AND REPRESENTED JUDGMENT The parties to this suit got married under the Marriages Ordinance (CAP 127) on October 4, 2003, at the St. Francis of Assisi Anglican Church, Mamprobi Accra. There are three children of this marriage. The first is Bryan Nii Adu Ofoliquaye aged 17, Lloyd Ofoliquaye aged 16 and Shantel Naa Odey Ofoliquaye aged 12. The Petitioner is seeking the dissolution of the ordinance marriage celebrated between the parties on ground of unreasonable behaviour on the part of the Respondent. The Petitioner claimed the following ancillary reliefs: 1. An order for custody of the 3rd issue of the marriage, namely Shantel Naa Odey Ofoliquaye to the Petitioner with reasonable access to the Respondent. 2. An order for the Respondent to maintain the 3rd issue of the marriage with a monthly amount of (GHC1,000.00), subject to an upward review every year from the date of Judgment. 3. An order for the Respondent to pay school fees, feeding fees, medical expenses and other incidental expenses of the 3rd issue as and when they fall due. 4. An order that the Respondent provides accommodation for the Petitioner and the 3rd issue until the issue attains the age of majority. 5. An order for the equitable distribution of the jointly acquired properties by the parties in the marriage. 6. Lump sum financial settlement for GHC50,000.00. The Respondent on the other-hand did not contest the dissolution of the marriage, he has however cross-petitioned for the following reliefs: a. Custody of all 3 issues of the marriage. b. Respondent to continue with the maintenance of the issues of the marriage as well as payment of school fees and medical bills as and when they fall due. c. Petitioner and Respondent be jointly responsible for the clothing needs as well as general welfare of the issues of the marriage. Section 1(2) of the Matrimonial Cause Act, 1971 (Act 367) states that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. In addition, the court before which such a petition is presented is required by law to determine as a fact that the marriage, has indeed broken down beyond reconciliation. In support of this, Section 2(3) of Act 367 provides as follows: 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. Section 2(1) of Act 367 stipulates the facts which a petitioner or a cross- petitioner may rely on to prove that the marriage which is sought to be dissolved has broken down beyond reconciliation as follows: a. That the Respondent has committed adultery and by the reason of such adultery the Petitioner finds it intolerable to live with the Respondent; or b. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; or c. That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or d. That the parties to the marriage have not lived as man 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 such 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 notwithstanding the refusal; or 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; f. That the parties have after diligent effort been unable to reconcile their differences. Unreasonable behaviour is a conduct that gives rise to injury to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger. In Ansah v Ansah [1982-1983] GLR 1127-1133, Owusu-Addo J held that: “The test under the section, was whether the Petitioner could reasonably be expected to live with the Respondent in spite of the latter's behaviour. The test was therefore objective. But the answer obviously had to be related to the circumstances of the petition in question that had to be a question of fact in each case. It followed that the conduct complained of must be sufficiently serious - since mere trivialities would not suffice.” In the case of MENSAH V. MENSAH (1972) GLR the court held that ‘the conduct complained of must be sufficiently grave and weighty enough to justify the finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as reasonable wear and tear of married life.” In Mensah v Mensah [Supra], Hayfron-Benjamin defined what amounts to unreasonable behaviour when he held as follows: “In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Casanova’s Charter. The test is objective.” In considering whether one party has good cause for leaving the other much depends on whether the conduct of the other is of a grave or weighty character as to amount, in law, to cruelty: see Gollins v. Gollins [1963] 2 All E. R. 966, H. L. Conduct which is of a grave or weighty nature may sometimes fall short of cruelty if it lacks the element of injury to health as in Edwards v. Edwards [1950] P. 8, C. A. The parties filed terms of settlement on the ancillary reliefs and prayed that the court adopts same as Consent Judgment. ISSUES The main issue for determination is: 1. Whether or not the marriage celebrated between the parties on October 4, 2003 at the St. Francis of Assisi, Accra in the Greater Accra Region has broken down beyond reconciliation? From the evidence-in-chief of the Petitioner, she prayed that her marriage to the Respondent has broken down beyond reconciliation on grounds of unreasonable behaviour on the part of the Respondent. According to the Petitioner the Respondent is an abusive person. He abuses her physically and verbally at petty happenings in the marriage, as a result of this there is not much communication in the marriage. The Petitioner tendered exhibit A series which are pictures showing body injuries on the Petitioner as a result of the Respondent brutality on her. Petitioner also tendered exhibit B which is a Police extract from the Mamprobi Police Station, showing a complaint made by the Petitioner on the Respondent’s behaviour. Again, the Petitioner stated that the Respondent has on a number of occasions locked her out of the matrimonial home. The Petitioner according prayed for a grant of divorce. The Respondent in response to the Petition also prayed for the grant of divorce on grounds of unreasonable behaviour on the part of the Petitioner. The Respondent in evidence stated that the Petitioner is abusive and always insults him over the slightest disagreement. The Petitioner also discusses all issues in their marriage with her mother and will always insist on towing the line of her mother on those issues. Again, even though the Respondent took a loan to sponsor the Petitioner’s university education at Winneba, the Petitioner upon completion of the degree at the university became insubordinate to him. It is the Petitioner who about 3 years before the filing of the petition packed her belongings and left the matrimonial home despite much persuasion to rescind her decision. Although the parties assert the grounds of unreasonableness as basis for the need to dissolve the marriage, I am of the view that the pleadings in the petition and cross-petition as well as evidence on record are not sufficiently grave and weighty as to come under this ground. Section 2(1) (f) provides: “That the parties after diligent effort have been unable to reconcile their differences.” Inability to reconcile differences was restated in the case of Mensah v Mensah 1972 2GLR 198 as follows: “The section does not require that there should be disputes between the parties; it only requires that there should be differences. A dispute is a difference but not all differences are disputes. The inability of a spouse to have an issue is not a difference; there may however be a difference between the spouses as to how to remedy the situation. Secondly, the differences must be between the parties. Land litigation between the wife's family and the husband's family would not be a difference between the wife and the husband, although it may lead to one. The fact that the husband belongs to the Justice Party and the wife supports the Progress Party does not mean that there are irreconcilable differences. Thirdly, the differences should be such as would make it impossible for the marriage to subsist. It should be remembered that evidence of the differences is being proffered to show the breakdown of the marriage. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and minor bickering which are but evidence of that frailty which all humanity is heir to is not sufficient. The differences must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other.” I find from the Petitioner’s evidence that indeed there is a difference between the parties. The parties have not been able to settle their difference as both parties are temperamental and have not been able to control their emotions and are not able to accommodate each other. Consequently, the court finds that it is the parties inability to reconcile their difference as provided under section 2(1)(f) of the Matrimonial Causes Act, 1971 (Act 367), which has brought the conflict between them was stated in the case of Mensah v Mensah 1972 2GLR. From the evidence adduced before this court, the only conclusion that I can arrive at is that marriage relationship between the parties has broken down beyond reconciliation. DECISION 1. The marriage celebrated between the Petitioner, DOREEN ANNABEL NAA ODARLEY LAMPTEY and the Respondent, JOSHUA OFOLIQUAYE on October 4, 2003, at the St Francis of Assisi Anglican Church Mamprobi Accra has broken down beyond reconciliation and same is dissolved. A decree of divorce is accordingly granted. The marriage certificate with registration no. SFAC/7/03 is hereby cancelled. 2. The court makes no order as to cost. The court hereby adopts the terms of settlement filed when parties accessed the CCADR and stated below as consent judgment: 2. That custody of the three children of the marriage Bryan Nii Adu Ofoliquaye, Lloyd Ofoliquaye and Shantel Naa Odey Ofoliquaye will be with the father, the Respondent but the boys shall spend two weeks in the long vacation with their mother the Petitioner and the girl visits her mother every two weekends in a month. 3. That the Respondent Joshua Ofoliquaye maintains the children but the Petitioner will assist when called upon. 4. The Respondent agreed to pay a lump sum of GHC10,000.00 within 14 months from the month of May 2023 with an amount of GHC715.00 parties have agreed that this honorable court adopt this agreement as Consent Judgment. LEGAL REPRESENTATION MOSES ATIIGA ESQ. FOR THE PETITIONER AMAZING GRACE ADOMAA ESQ. FOR THE RESPONDENT H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 7