Tetteh Vrs Tetteh [2023] GHADC 29 (2 March 2023)

CORAM: HER WORSHIP MRS. ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 2ND OF MARCH, 2023 ______________ SUIT NUMBER A4/56/2022

BEATRICE TETTEH

V

SAMUEL TETTEH - -

PETITIONER

RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 9.23 AM

PETITIONER

RESPONDENT - -

PRESENT

PRESENT

PETITIONER REPRESENTED BY BEN SAMPSON EPHRIAM

RESPONDENT UNREPRESENTED _______________

JUDGMENT The instant petition was filed by the Petitioner on 27/04/2022 against the Respondent praying for a dissolution of the ordinance marriage celebrated between the parties on the 29th September 2007 on the grounds of unreasonable behaviour and adultery on the part of the Respondent. Petitioner further prays for the following: 1. 2. 3. 4.

5. That the marriage celebrated between the parties be dissolved That the Respondent be ordered to pay to the Petitioner such maintenance pending suit. That the Respondent be ordered to pay to the Petitioner a lump sum of Sixty Thousand Ghana cedis (GH₵₵60,000.00) That the Petitioner be given the 2-bedroom and hall main building That the Petitioner be given the monetary value of half share of the saloon car and the 4x4 vehicle

OR IN THE ALTERNATIVE The Petitioner should be given the 2-bedroom outhouse. After so many adjournments, the Respondent filed an answer on 19/09/2022 admitting to committing adultery and justifying the claim of unreasonable behaviour. He cross- petitioned as follows: 1. Respondent is pleading to the honourable court to reconcile them but not to dissolve their marriage relationship and also says that Petitioner is entitled to compensation of GH₵1,000 for the adultery committed by the Respondent.

2. Respondent admits to paying maintenance to the Petitioner till the final determination of this suit. Respondent also says that couples are still living together as husband and wife therefore the issue about the sharing of the house will not help their relationship alternatively, parties can come together to put up the same type of house at a location suitable to the Petitioner if she so wishes. Pursuant to the orders of the court on 11/8/2022, the Petitioner filed her witness statement but the Respondent failed to file his till trial began on 2/3/2023. The issue for determination at the end of the trial thus is whether or not the marriage between the parties has broken down beyond reconciliation as a result of the unreasonable behaviour and adultery committed by the Respondent The sole ground for the grant of divorce in Ghana is that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act 1971, Act 367 refers. To be able to arrive at this conclusion, the petitioner is enjoined to establish that one or more of the facts stated in section 2(1) of the said Act have occurred. Section 2(1) of Act 367 provides that “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. Only the relevant sections will be quoted. (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; As stated earlier, the Petitioner grounds the reason for the divorce on Adultery and Unreasonable behavior. It is the case of the Petitioner that the parties have been married for the past 15 years and they have no children of their own. Indeed, this was part of the parties’ issues. Since they married, they had difficulty having children. Numerous visits to various hospitals revealed that there was nothing wrong with the Petitioner but rather the Respondent had low sperm counts. All efforts to get the Respondent to get treatment failed until it was too late for a cure. Petitioner says that the Respondent has been so cruel to her since he initially refused to seek help. Eventually, it came out through an argument with the Petitioner that the Respondent had given birth out of wedlock. The sister of the Respondent was the first to confirm the same to the Petitioner until the Respondent himself confessed. Petitioner says she was devastated by the news. It is further the case of the Petitioner that, when the parties got married, they agreed that the Petitioner should use her money to support the home while the Respondent, naval personnel

used his to put up the matrimonial home. During the cause of the marriage, they also acquired two vehicles that are in the possession of the Respondent. Petitioner says that considering her age presently, it is evident that the Respondent has wasted her time and she is losing her head. She says that she developed fibroids and had to undergo surgery, Respondent refused to support her. She had to go for a loan to have it done. Later on, through the intervention of his Uncle Respondent paid GH₵2,000.00 of the total cost of GH₵4,500. Petitioner says the Respondent has caused her so much pain and embarrassment and she does not want to waste any more time. The petitioner avers that the maintenance from the Respondent was not regular and that since December 2022 Respondent is in arrears of GH₵1,500.00 The Respondent per his answer virtually admitted all the averments of the Petitioner. He admitted that he had committed adultery and prays for the court to order him to pay compensation to the Petitioner but not to dissolve the marriage. He admits that it is the Petitioner who has been cooking for him any time he returns from his base in the Volta Region. He avers however, that at the time of their difficulty to get children, both of them went to the hospital and when he was told that he had a low sperm count, he began treatment and was later told by another doctor that he had recovered.

It is the Respondent’s case that he refused to pay the cost of the surgery because he is military personnel and had made arrangements for Petitioner to allow for the surgery to be done at 37 Military Hospital but the Petitioner refused. However, upon second thoughts he paid half. He denies ever denying the Petitioner of sex and prays for the marriage to be salvaged. After the evidence of the Petitioner, the Respondent failed to cross-examine the Petitioner. He said he had nothing to ask and that all that the Petitioner had said was true. Below is what transpired on 2/3/2023 at page 9 of the record of proceedings when it was time for him to cross examine the Petitioner. Respondent: I don’t have any questions to ask the petitioner. Court: The implication is that all that she has said is the truth, are you are aware Respondent: Yes, my Lord, I understand and I don’t have any questions to ask. I just want us to agree on the way forward. In Quagraine V Adams [1981] GLR 599, CA, it was held that “where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine”. See also Browne V Dunn (1894) 6 R 67, HL Keen Adrian (2008), in his book “The Modern Law of Evidence” (seventh Edition), Oxford, New York, 195, stated thus “A party’s failure to cross examine however,

has important consequences. It amounts to a tacit acceptance of the witness’s evidence in chief. A party who has failed to cross- examine a witness upon a particular matter in respect of which it is proposed to contradict his evidence-in-chief or impeach his credibility by calling other witnesses, will not be permitted to invite the jury or tribunal of fact to disbelieve the witness’s evidence on that matter.” From the authority above, the failure of the Respondent to cross examine the Petition implies that all that the Petitioner averred in her petition is admitted, thus the reason for the non-challenge. In this case, however, the Respondent unequivocally admits that he has committed adultery but pleads with the court not to dissolve the marriage. Section 43 of the Matrimonial Causes Act, 1971, (Act 367) defines adultery as “the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse”. It has been decided that the type of intercourse required to prove adultery is evidence of some penetration of the female organ by the male organ. In Quartey v Quartey & Anor [1972] 1 GLR 6, Kingsley-Nyinah J held that “A court may act upon an admission of adultery even though there is no confirmatory proof of it, if the court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to a clear, distinct and

unequivocal admission of adultery” I have no doubt about the unequivocal admission of adultery by the Respondent. Indeed, satisfied with the evidence of the admission by the Respondent and believing it is trustworthy, I shall therefore not hesitate at all to dissolve the marriage especially where the Petitioner is not ready to condone the actions of the Respondent. I find that the Respondent has behaved in a manner that the Petitioner cannot be expected to live with him. Having considered all the evidence and the authorities, I am satisfied that the marriage between the parties herein has indeed broken down beyond reconciliation. Accordingly, I decree that the ordinance marriage contracted between the parties herein on the 29th September 2007 at the Wesley Methodist Cathedral, Sekondi be and is hereby dissolved. I must say that in arriving at the decision below regarding the ancillary reliefs, the Respondent has been so instrumental in same.

DECISION 1. The marriage contracted between the parties herein on the 29th of September, 2007 at the Wesley Methodist Cathedral, Sekondi has broken down beyond reconciliation and same be and is hereby dissolved. It is ordered that a decree of divorce be granted; the marriage certificate with registration number WMC/SKD/13/07 is hereby cancelled.

2. Respondent is ordered to pay to the Petitioner Maintenance arrears of GH₵1,500 within three months from today.

3. Respondent is ordered to pay the Petitioner financial provision of GH₵30,000.00. GH₵20,000.00 to be paid by the 28th of April, 2023. The remaining GH₵10,000 to be in 6 monthly instalments effective May 31st 2023 4. The Respondent is ordered to take the main two-bedroom house of the matrimonial home. The Petitioner shall take the outer house. Respondent is hereby ordered to complete the ceiling and the tiling in the bathroom and put the place in a tenable manner to enable the petitioner to move in. The Respondent is ordered to complete same by July, 2023.

5. There is no order as to Costs (SGD) H/W ROSEMARY EDITH HAYFORD (MRS)

MAGISTRATE 8