Mensah Vrs Ebenezer [2023] GHADC 374 (13 July 2023)

IN THE DISTRICT COURT HELD AT SOMANYA ON THURSDAY THE 13TH DAY OF JULY, 2023 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO SUIT NO. A4/194/2023

MAVIS MENSAH

PETITIONER

TETTEH EBENEZER - RESPONDENT

VRS

PARTIES -

PRESENT

JUDGEMENT The Petitioner instituted the instant action for the dissolution of the marriage between her and the respondent and for the grant of custody of the children of the marriage with reasonable access to the respondent. The petitioner is an assistant pharmacist and stays at Akweteman – Somanya. She stated per her witness statement that they had their customary marriage on 5/1/2013 and converted same to ordinance marriage on the same day at the Apostolic church of Ghana, Djaba Road, Somanya. She added that the marriage has been blessed with two (2) children namely Anneh Benedict and Anneh Grant Tetteh who are 9 and 6 years respectfully. She further added that in the year 2017 the respondent was not sleeping frequently in the matrimonial home and eventually stopped sleeping in same in the year 2019. She added that the respondent told her that he had impregnated a lady by name Rosemary who he had planned to marry. According to the petitioner, the respondent once told her that he (respondent) was no longer ready to have sex with her and that whenever the petitioner desires for sex, she should inform him (respondent) of same adding that he (respondent) will have sex with the petitioner at his own time. Also the petitioner made several advances to compel the respondent to have sex with her but they were all turned down with accompanying insults at times. It is the case of the

petitioner that they were staying in a 3-bedroom apartment where the respondent told her to come to his room only upon invitation. She further stated that at one time, the respondent permitted his master’s son by name Emmanuel Djabotey to be sleeping in the matrimonial home without her (Petitioner’s) consent and approval. In the evening of 5/3/2021, Emmanuel Djabotey bought a Darling Lemon drink and gave some to the petitioner who also drank and became dazed as a result and Emmanuel Djabotey had sex with her without her consent. The Respondent stated that she later found out hat the said lemon drink was laced with a drug. She stated that the respondent rushed home at about 10:30pm and enquired about what had happened and she narrated the whole happening to him. The respondent then told her that he mounted a secret camera in the room which recorded the whole sexual act which he has recorded on his mobile phone. She added that, the respondent called her (petitioners’ auntie) on phone and told her to come and take the petitioner to her house else he (respondent) would kill her (petitioner) and her cousin came and took her (petitioner) to her auntie’s house at Kodjonya that night. In conclusion, she stated that all attempts by both families and elders of the church to resolve the matter had failed and the respondent had warned her not to come closer to the children or step her foot

in the matrimonial home. The respondent stated in his witness statement that he is an auto electrician by profession and at times sleeps at the workshop to protect his customers’ cars parked over there from being stolen by thieves of which the petitioner is aware of. He added that one of his apprentices by name Emmanuel Djabotey pleaded with him (respondent) to allow him to sleep in his (respondent’s) room because he (apprentice Djabotey) had a visitor who was sleeping in his (Djabotey’s) room. The respondent agreed to the request and informed the petitioner about it so Djabotey slept in the respondent ‘s hall. The respondent further stated that he came home on one occasion and saw his wife the petitioner and Djabotey on the matrimonial bed and when he enquired from the petitioner as to why Djabotey was on the bed, she (petitioner) told him (respondent) that she fell asleep and did not realize that Emmanuel Djabotey was sleeping by her on the matrimonial bed. In addition, the respondent stated that on the second occasion, he saw the petitioner and Djabotey having sex on the matrimonial bed so he recorded same through the window. According to the respondent, he questioned the petitioner as to why she had sex with Djabotey and the petitioner told him that Emmanuel Djabotey put a drug in a drink and gave her to drink after which she became dazed and Djabotey took advantage of

her situation and had sex with her. The respondent then sacked the petitioner from the matrimonial home. He stated that the petitioner took the children away to stay with her but she brought them back to him (respondent) after some weeks. He added that, the respondent was regularly visiting the children until she started misbehaving each time she visited so he (respondent) stopped her from visiting the children. He concluded that, church and family members made several attempts to resolve the matter but to no avail. The legal issue to be determined by the court is whether or not the marriage has broken down beyond reconciliation. Section 2 of the matrimonial causes Act 1971 (Act 367) provides that, for the purpose of showing that a marriage has broken down beyond reconciliation, the petitioner shall satisfy the court of one or more of the following facts: 2(1)(a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent. (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. (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. One of the conditions or facts

provided by Act 367 to show that a marriage has broken down beyond reconciliation is for the petitioner to satisfy the court that the respondent has committed adultery. In the instant case however, it is the petitioner who has committed adultery. This fact was admitted during cross examination of the petitioner as follows: Q: I am putting it to you that I caught you red-handed having sex with another man on our matrimonial bed. A: That is true Q: You could not explain to me why you has sex with the said man at that time A: I told you that he gave me a drink Q: I am putting it to you that the said man is called Emmanuel Djabotey A: That is true It is clear from the above that the petitioner has admitted that she has sex with a man other than the respondent who is her husband. This conduct constitutes adultery. The reason adduced by the petitioner is untenable as the respondent had once seen both the petitioner and the said Ebenezer Djabotey sleeping on the matrimonial bed. The conduct is irresponsible as such, the respondent cannot reasonably be expected to live with the petitioner. Evidence adduced is indicative of the fact that both the petitioner and the respondent are currently staying at different houses since the unfortunate incident occurred on 5/3/2021. It is therefore appropriate to state 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 as provided in section 2(1)(d) of Act 367. It is also evident from the hearing that both parties have attested to the fact that all attempts aimed at resolving the matter have failed. This assertion is expressed in the fact that family elders of both parties and church elders made several attempts to resolve the matter but were unsuccessful. This means that the parties to the marriage have after diligent effort been able to reconcile their differences. The parties in reference in this circumstance are the petitioner and the respondent. Moreover, the respondent per relief (a) of his cross petition has consented to the grant of divorce. It is my finding after considering all the evidence adduced that the marriage has broken down beyond reconciliation. In this circumstance, I declare the ordinance marriage between Mavis Mensah herein referred to as the petitioner and Tetteh Ebenezer Herein referred to as the respondent, duly dissolved and make the following orders: 1. That the respondent shall pay alimony of GH₵ 4,000.00 to the petitioner.

2. That custody of the two (2) children is granted to the petitioner with reasonable access to the respondent on weekends and on school holidays.

3. That the respondent shall pay a monthly maintenance of GH₵ 200.00 each in terms of maintenance of the welfare of the two children. (SDG) ……..…………………………..

MICHAEL DEREK OCLOO

DISTRICT MAGISTRATE 13TH JULY, 2023