Assou Vrs Okae [2023] GHADC 674 (4 April 2023)

IN THE DISTRICT COURT HOLDING AT DODOWA, SHAI- OSUDOKU ON TUESDAY THE 4TH DAY OF APRIL, 2023 BEFORE HER WORSHIP BRIDGET AKPE

AKATTAH SUIT NO: A4/43/2021 AMOUZOU-EDAH ASSOU …

PETITIONER VRS MABEL MAWUSE OKAE …

RESPONDENT Per a petition filed on the 18th of November, 2020, the Petitioner sought the following

JUDGMENT relief: (i) That the said marriage as celebrated between the parties on 16th July, 2016 be dissolved forthwith on medical grounds and divorce certificate granted to enable both parties move on with their lives. Respondent on her part, filed her answer to the Petition on 20th January, 2021 upon service on her of the Petition. Respondent sought the following reliefs: (i) That the marriage as celebrated between the parties on 16th July, 2016 be dissolved forthwith. (ii) No order as to compensation and alimony. Parties were however referred to Alternative Dispute Resolution (ADR) and both parties entered into and filed their terms of settlement on 28th April, 2021. This Court proceeded to take evidence to establish the breakdown of the marriage beyond reconciliation. The main issue for the determination of this Court is whether or not the marriage between the parties has broken down beyond reconciliation? Page 1 of 6 This is a matrimonial cause governed by the Matrimonial Causes Act, 1971 (Act 367). It is therefore in the nature of a civil claim. The onus therefore, of producing evidence of any particular fact, as in all civil cases, is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing

sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The burden of producing evidence has been defined in Section 11 (1) of NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. The burden of proof is also not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 as follows: “14 Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. So in accordance with the general rule of procedure, the Petitioner had the burden of proving all the averments he made against the Respondent on a preponderance of Page 2 of 6 probabilities. If he succeeds in establishing his averments by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same. Under

section 1(2) of the Matrimonial Causes Act, 1971 (Act 367), a Court shall not grant a petition for divorce unless the marriage is proven to have broken down beyond reconciliation. And under Section 2(1) of Act 367, for the purposes of showing that the marriage has broken down beyond reconciliation, a Petitioner for divorce 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; 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. It has been held in a line of cases including Donkor v Donkor

[1982-83] GLR 1158 that the Matrimonial Causes Act, 1971 (Act 367), did not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution Page 3 of 6 of their marriage just for the asking. And that the Petitioner in such a case for dissolution of marriage must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act (above), not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. The court explained further that Section 2 (3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. The Petitioner led evidence and called no witness herein. The case the Petitioner put across is that the Respondent is of unreasonable behavior as she always allowed her family members to evade their matrimonial home and deny them of any privacy. Petitioner claimed he complained about this situation to no avail as the Respondent did nothing about it. Petitioner claimed their inability to give birth during the pendency of the marriage led to a lot of tension from both families, hence his resolve to seek for divorce as attempts at resolving issues of the parties saw no light of

the day. He therefore prayed the Court for the marriage to be dissolved. The Respondent on the other hand filed her witness statement but failed/refused/neglected to come to Court to put her case across when several hearing notices were served on her. As I stated above, the Respondent did not make an appearance in Court. She filed an answer to the allegations made by the Petitioner, and subsequently, a witness statement. Under such circumstances, since the Respondent has not denied any of the allegations made by the Petitioner against her in the petition but failed to lead any evidence, she is deemed to have admitted the allegations made by the Petitioner against her. This is because, even though she was served with the documents and several hearing notices, she did not appear to respond to them. As I mentioned above, the Respondent was duly Page 4 of 6 and regularly served to appear to answer the charges levelled against her by the Petitioner through his evidence but she failed to appear. The reasons for her failure to appear are not known to the Court. This position is firmly grounded in the holding of the case of Republic v Circuit Court; ex parte Dzakah [1984-86] 1 GLR 741 to the effect that where the opportunity is given a party to appear in Court and he fails to appear, he cannot raise a claim later that he was not heard. In such a case the party who fails to appear can

be said to have deliberately abstained from taking advantage of an opportunity to be heard and no breach of the audi alteram partem rule can be said to have occurred. This principle of law has been pronounced on and affirmed in recent cases of the Supreme Court: Republic v High Court (Human Rights Division), Accra; Ex Parte Akita [2010] SCGLR 374; Republic v High Court (Fast Track Division) Accra, Ex Parte Ayikai (Akosoku IV – Interested Party) [2015-2016] 1 SCGLR 289. The Court would then have taken evidence from the Petitioner to prove his case. And based on the evidence on record, an evaluation would be made on the available evidence. This course of action is duly supported in a line of judicial decisions that where some evidence is given by the Plaintiff in a case (Petitioner in this instance), no matter how indefinite or insufficient it may be, if not rebutted by a better or superior type of evidence, the trial court is perfectly entitled to consider it, and what credence or weight it decides to attach to it is entirely a matter for it. If it believes or accepts the particular piece of evidence on an issue of fact, its decision cannot be questioned unless it is based on a wrong principle of law. See Yoguo v Agyekum [1966] GLR 482 at 505. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation. I therefore grant the Petitioner’s prayer and pronounce dissolution of the marriage between him and the Respondent. The marriage between the parties on 16th July, 2016 is hereby dissolved. Page 5 of 6 No order as to costs. (SGD)

HER WORSHIP BRIDGET AKPE AKATTAH

DISTRICT MAGISTRATE Page 6 of 6